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Case No. 1160579
IN THE SUPREME COURT OF ALABAMA
THE ALABAMA HOUSE OF REPRESENTATIVES JUDICIARY COMMITTEE, ET AL.,
Defendants/Petitioners V.
THE OFFICE OF THE GOVERNOR OF ALABAMA AND GOVERNOR ROBERT BENTLEY,
Plaintiff/Appellees
On Appeal from Circuit Court of Montgomery County, Alabama
03-CV-2017-000206.00
BRIEF OF APPELLANTS THE ALABAMA HOUSE OF REPRESENTATIVES JUDICIARY COMMITTEE, ET AL.
OF COUNSEL: Jackson R. Sharman III (SHA048) [email protected] Wesley B. Gilchrist (GIL066) [email protected] Rachel M. Lary (LAR016) [email protected] LIGHTFOOT, FRANKLIN & WHITE, L.L.C. The Clark Building 400 North 20th Street Birmingham, AL 35203-3200 (205) 581-0700 (205) 581-0799 (Facsimile) Attorneys for Defendants/Appellants The Alabama House of Representatives Judiciary Committee; Representative Mike Jones, Chair of the Alabama House of Representatives
Judiciary Committee; Representative Jim Hill, Vice Chair of the Alabama House of Representatives Judiciary Committee;
E-Filed 04/10/2017 @ 09:52:18 AM Honorable Julia Jordan Weller Clerk Of The Court
Representative Marcel Black, Ranking Minority Member of the Alabama House of Representatives Judiciary Committee; Representative Mike Ball; Representative Beckman;
Representative Merika Coleman; Representative Dickie Drake; Representative Chris England; Representative Allen Farley; Representative David Faulkner; Representative Matt Fridy;
Representative Jaundalynn Givan; Representative Mike Holmes; Representative Thad McClammy; and Representative
Phillip Pettus, Members of the Alabama House of Representatives Judiciary Committee
James L. Entrekin, Jr. (ENT002) [email protected] Chief of Staff Office of the Speaker Mac McCutcheon Alabama House of Representatives 11 South Union Street Montgomery, Alabama 36130 (334) 242-7671 Attorney for Representative Mac McCutcheon, Speaker of the
Alabama House of Representatives
i
STATEMENT REGARDING ORAL ARGUMENT
Because of the need for expedited consideration of this
matter, and because Defendants/Appellants The Alabama House
of Representatives Judiciary Committee, its Members, and
the Speaker of the House (“the House Defendants”) believe
that the briefing will clearly show that the trial court’s
order enjoining the proceedings to impeach the Governor
must be reversed, they do not request oral argument.
ii
TABLE OF CONTENTS
Page
STATEMENT REGARDING ORAL ARGUMENT ......................... i
STATEMENT OF JURISDICTION ................................ iv
TABLE OF AUTHORITIES ...................................... v
STATEMENT OF THE CASE ..................................... 1
I. Nature of the Case .................................... 1
II. Course of Proceedings and Disposition in the Court Below. ................................................ 1
STATEMENT OF THE ISSUES ................................... 3
STATEMENT OF THE FACTS .................................... 5
STATEMENT OF THE STANDARD OF REVIEW ....................... 8
SUMMARY OF THE ARGUMENT ................................... 9
ARGUMENT ................................................. 12
I. The Separation of Powers Doctrine Deprived the Trial Court of Subject Matter Jurisdiction and Precludes Judicial Review of the Impeachment Power of the House of Representatives. ............................ 12
II. The Impeachment Power of the House of Representatives Is a Nonjusticiable “Political Question.” ........................................... 17
A. The power of impeachment is textually committed by the Constitution to the House of Representatives. ................................ 20
B. There are no judicially discoverable and manageable standards for the courts to resolve this issue. ..................................... 23
C. The Order expresses a lack of the respect due to the House of Representatives. ................ 24
iii
D. A pronouncement by the judicial branch on this legislative question would risk further conflict between the branches of government and further embarrassment. .......................... 25
III. The Speech or Debate Clause Protects the Members of the Judiciary Committee and Prohibits this Action. ... 26
IV. Governor Bentley’s Due Process Complaints Do Not Justify Judicial Intervention in the House’s Affairs. ............................................. 31
A. The Federal Due Process Clause Does Not Apply Because Governor Bentley Does Not Have a Private Property Interest in the Office of the Governor. ....................................... 32
B. This Court’s Statements about Due Process under Section 174 and 175 Do Not Allow the Judiciary To Dictate the Legislature’s Proceedings under Section 173. .................................... 38
CONCLUSION ............................................... 40
iv
STATEMENT OF JURISDICTION
This Court has jurisdiction over this appeal of an
order granting a preliminary injunction pursuant to Ala. R.
App. P. 4(a)(1)(B).
v
TABLE OF AUTHORITIES
Page Cases Abrahamson v. Neitzel, 120 F. Supp. 3d 905 (W.D. Wisc. 2015) .................. 34 Baker v. Carr, 369 U.S. 186 (1962) .......................... 10, 17,18, 19 Birmingham-Jefferson Civic Ctr Auth. v. City of Birmingham,912 So. 2d 204(Ala. 2005) ................ passim
Bd. of Educ. of Shelby Cty, Tenn. v. Memphis City Bd. of Educ., No. 11-2101, 2011 WL 344059 (W.D. Tenn. 2011) .... 35
Bd. of Regents of State Colleges v. Roth, 408 U.S. 563 (1972) ................................. 32, 33 City of Birmingham v. Graffeo, 551 So. 2d 357 (Ala. 1989) .......................... 36, 38 Copeland v. City of Union, Missouri, No. 4:15-cv-554, 2016 WL 259379, at *3 (E.D. Miss. Jan. 20, 2016) ............ 35
D'Agonstino v. Delgadillo, 11 Fed. App'x 885 (9th Cir. 2004) ....................... 35 Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975) ............................. 11, 27, 29 Ex parte James, 836 So. 2d 813 (Ala. 2002) .......................... passim Ex parte James, 713 So. 2d 869 (Ala. 1997) .............................. 14 Ex parte Jenkins, 723 So. 2d 649 (Ala. 1998) .............................. 13 Ex parte Marsh, 145 So. 3d 744 (Ala. 2013) .......................... passim
vi
Ford v. Donovan, 891 F. Supp. 2d 60 (D.D.C. 2012) ........................ 35 Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) ...................................... 8
Holiday Isle, LLC v. Adkins, 12 So. 3d 1173 (Ala. 2002) ............................... 8 Jennerjahn v. City of Los Angeles, No. 2:15-cv-263, 2016 WL 1358950, at *12 (C.D. Cal. March 15, 2016) ............. 35
LaPointe v. Winchester Bd. of Educ., 366 Fed. App'x 256 (2nd Cir. 2010) ...................... 35 Magee v. Boyd, 175 So. 3d 79 (Ala. 2015) ............................... 22 Moore v. Watson, 429 So. 2d 1036 (Ala. 1983) ............................. 36 Opinion of the Justices No. 148, 81 So. 2d 881 (Ala. 1955) ............................... 37 Opinion of the Justices No. 185, 179 So. 2d 155 (Ala. 1965) .............................. 16 Opinion of the Justices No. 265, 381 So. 2d 183 (Ala. 1980) .............................. 16 Office of the Governor v. Select Comm. of Inquiry, 858 A.2d 709 (Conn. 2004) ............................... 31 Parks Miller v. Centre Cty, No. 4:15-cv-1754, 2016 WL 2752645 (M.D. Pa. May 11, 2016) ........................................................ 35
Piggly Wiggly No. 208, Inc. v. Dutton, 601 So.2d 907 (Ala. 1992) ............................... 13 Porteous v. Baron, 729 F. Supp. 158 (D.D.C. 2010) .......................... 29
vii
Simpson v. Van Ryzin, 265 So. 2d 569 (Ala. 1972) .............................. 36 Snowden v. Hughes, 321 U.S. 1 (1944) ............................... 34, 35, 37 State v. Buckley, 54 Ala. 599 (1875) ...................................... 39 State of Alabama ex rel. James v. Reed, 364 So. 2d 303 (Ala. 1978) ...................... 22, 37, 38 Stephenson v. Lawrence Cty Bd. of Educ., 782 So. 2d 192 (Ala. 2000) .............................. 37 Taylor v. Beckham, 178 U.S. 548 (1900) ..................... 34, 35, 36, 37, 38 Wilson v. Birnberg, 667 F.3d 591 (5th Cir. 2012) ............................ 34
Constitutional Provisions U.S. Const. art. XIV, § 1 ................................ 32 Ala. Const. art. III, § 42 ........................... passim Ala. Const. art. III, § 43 ........................... passim Ala. Const. art. IV, § 56 ................................ 26 Ala. Const. art. IV, § 60 ................................ 22 Ala. Const. art. V, § 127 ............................ 32, 33 Ala. Const. art. VIII, § 173 ......................... passim Ala. Const. art. VII, § 174 ...................... 32, 37, 38 Ala. Const. art. VII, § 175 .......................... 32, 38 Ala. Const. art. VII, § 176 .............................. 33
viii
Rules 2016 Alabama House Resolution 334, Alabama 2016 Regular Session ............................................ passim
Amended Committee Rules of the House Judiciary Committee for the Impeachment of Governor Robert Bentley ....... 24,25
Other Authorities Hamilton, Alexander, The Federalist Papers, No. 65 (Penguin Group, First Mentor Printing, April 1961) ............... 23
1
STATEMENT OF THE CASE
I. Nature of the Case
This unprecedented case tests the separation of powers
under the Alabama Constitution by asking whether the
Governor of Alabama can obtain an injunction from a trial
court to prevent the House of Representatives from
discharging its constitutional prerogative to investigate
whether cause exists to impeach the Governor.
II. Course of Proceedings and Disposition in the Court Below.
On April 7, 2017, Governor Bentley filed a Verified
Complaint for Declaratory and Injunctive Relief
(“Complaint”) along with a Motion for Temporary Restraining
Order and Preliminary Injunction (“Motion,” Doc. 2) and
supporting brief (“Brief,” Doc. 4) seeking, in part, to
enjoin the commencement of hearings before the House
Judiciary Committee in connection with the impeachment
investigation of the Governor.
That same day, the trial court1 enjoined the House
Defendants from proceeding with the hearings scheduled for
April 10, 2017. Ex. A. The trial court further issued an
1 Two Circuit Court Judges, Hon. James H. Anderson and Hon. Roman Shaul, recused themselves from this matter. The case was ultimately heard by the Hon. Greg Griffin.
2
order stating that it would hold a “Show Cause Hearing” on
May 15, 2017. Ex. B. The House Defendants immediately
appealed. Ex. C.
On April 8, 2017, this Court entered an order staying
the trial court’s injunction and setting out an expedited
briefing schedule. Ex. D.
3
STATEMENT OF THE ISSUES
1. The Alabama Constitution expressly mandates the
separation of powers among the legislative, executive, and
judicial departments of the State. Section 173 of our
Constitution exclusively vests in the House the power to
impeach the Governor. Section 53 gives the House plenary
power to determine its own rules. Did the trial court have
jurisdiction to enjoin the Committee from holding
impeachment hearings pursuant to its own rules?
2. The Governor initiated this suit to prevent the
House from investigating him for possible impeachment,
claiming he was not being afforded due process. This Court
has held that courts must not decide political questions
that are better left to the determination of the political
branches of government. Did the trial court have
jurisdiction to decide a dispute between the executive and
legislative branches over impeachment under Section 173?
3. The House is currently in session. The House
Defendants include fifteen Members of the House Judiciary
Committee and the Speaker of the House. This Court has
held that legislators are immune from suit under the Speech
or Debate Clause of the Alabama Constitution, which
4
prohibits courts from inquiring into any act during the
legislative process. In light of the House Defendants’
immunity, did the trial court have jurisdiction to enjoin
them from holding a committee hearing?
4. Governor Bentley has no property interest in the
Office of the Governor. His life and liberty are not at
stake as a result of the House’s impeachment procedures.
Do any due process considerations vest the trial court with
jurisdiction to enjoin the House Defendants’ from holding a
hearing?
5
STATEMENT OF THE FACTS
In April 2016, twenty-three members of the Alabama
House of Representatives introduced articles of impeachment
against Plaintiff/Appellee Robert J. Bentley, Governor of
the State of Alabama (“Governor Bentley”). Complaint, ¶ 3.
Pursuant to House Rule 79.1, the proposed articles of
impeachment were referred to the Committee for two
purposes: to conduct an investigation and to make a
recommendation to the full House. Id., ¶ 4.
On March 22, 2017, the undersigned, Special Counsel to
the Committee, gave notice to counsel for Governor Bentley
that the Committee would conduct hearings in accordance
with Committee Rules beginning April 10, 2017. Id., ¶ 123.
The Committee’s Amended Rules for the Impeachment
Investigation of Governor Robert Bentley provide numerous
opportunities for Governor Bentley to be heard. See Ex. E.2
For example, Governor Bentley, his personal counsel, and
counsel for the Office of the Governor may attend any
hearing. Id., Comm. R. 2(e), (g). After Special Counsel
makes his presentation to the Committee, counsel for
Governor Bentley and the Office of the Governor “shall be 2 This Court may take judicial notice of the Rules, which are referenced in the Complaint. See Compl. ¶¶ 102-103.
6
invited to respond … orally or in writing.” Id., Comm. R.
2(i)(2). The Committee Rules further provide that counsel
for Governor Bentley and the Office of the Governor may be
given the opportunity to submit written summaries of what
they would propose to show to the Committee, and “the
Committee shall determine whether the suggested evidence is
necessary or desirable to a full and fair record in the
inquiry.” Id., Comm. R. 2(i)(3).
The Committee has honored all of these requirements.
The Committee has invited counsel for Governor Bentley and
the Office of the Governor to respond to Special Counsel’s
presentation the following day. See Letter of Jack Sharman
to Ross Garber and David Byrne, March 23, 2017 (Ex. F).3
Governor Bentley may testify at the hearing if he so
chooses and after being advised of his rights. Id. After
Special Counsel submits his final report, counsel for
Governor Bentley and the Office of the Governor will be
allowed to respond in writing.
All of these opportunities for Governor Bentley to be
heard will precede the Committee’s vote on whether to
3 The Court may take judicial notice of the letter, which was referenced in the Complaint. See Compl. ¶¶ 122-23.
7
recommend impeachment and any vote by the House on articles
of impeachment.
Despite all these protections and the opportunities to
be heard, on April 7, 2017, Governor Bentley claimed his
“due process rights” were being violated and filed the
Complaint, Motion, and Brief seeking to enjoin the
Committee’s scheduled hearings.
That same day, the trial court enjoined the House
Defendants from proceeding with the scheduled hearings
concerning the impeachment investigation of Governor
Bentley. Ex. A. The trial court further issued an order
stating that it would hold a “Show Cause Hearing” on May
15, 2017 — more than a month after the hearings had been
scheduled to begin. Ex. B.
8
STATEMENT OF THE STANDARD OF REVIEW
“To the extent that the trial court's issuance of a
preliminary injunction is grounded only in questions of law
based on undisputed facts, our longstanding rule that we
review an injunction solely to determine whether the trial
court exceeded its discretion should not apply.” Holiday
Isle, LLC v. Adkins, 12 So. 3d 1173, 1176 (Ala.
2008)(emphasis in original). Rather, “[this Court]
review[s] the District Court's legal rulings de novo and
its ultimate decision to issue the preliminary injunction
for abuse of discretion.” Id. (quoting Gonzales v. O
Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418,
428 (2006)).
9
SUMMARY OF THE ARGUMENT
Our Constitution expressly divides the State
government’s powers “into three distinct branches” –
legislative, executive, and judicial. Ala. Const., art.
III, § 42(a). It further expressly prohibits each
department from exercising powers of the other two
departments except where “expressly directed or permitted.”
Ala. Const., art. III, § 42(c). Thus, unlike the federal
constitution, separation of powers under the Alabama
Constitution “is not merely an implicit ‘doctrine’ but an
express command,” Ex parte James, 836 So. 2d 813, 815 (Ala.
2002), and it operates to limit the subject matter
jurisdiction of the courts. Birmingham-Jefferson Civic Ctr.
Auth. v. City of Birmingham, 912 So. 2d 204, 212 (Ala.
2005) (“BJCCA”).
Section 173 of the Alabama Constitution expressly vests
in the House of Representatives the power to impeach the
Governor of the State of Alabama. It imposes no
restrictions or requirements on the manner in which the
House exercises the impeachment power. Further, under
Section 53 of the Alabama Constitution, the House has
exclusive authority to determine its own rules and
10
procedures. Thus, in light of the doctrine of separation of
powers, the trial court lacked jurisdiction to enjoin the
House Defendants from holding hearings and taking further
action concerning the impeachment investigation of Governor
Bentley.
The dispute between the Governor and the House
Defendants clearly presents a non-justiciable political
question. Although only one is necessary, here, four of
the six factors under Baker v. Carr, 369 U.S. 186 (1962),
adopted by this Court in BJCCA, are met: (1) the
impeachment power is textually committed by the
Constitution to the House under Section 173; (2) there are
no judicially discoverable and manageable standards for the
courts to resolve disputes concerning the House’s
impeachment power; (3) it is impossible for the courts to
undertake an independent resolution of such questions
without expressing a lack of the respect due to the House;
and (4) a judicial pronouncement on the questions presented
would risk placing the courts at odds with the House and
thus cause further “embarrassment” to the State.
By suing the House Defendants—sixteen duly-elected
Representatives—Governor Bentley has violated Section 56 of
11
the Constitution, the “Speech or Debate Clause,” which
prohibits interfering with legislators acting within the
sphere of legitimate legislative activity. See Ex parte
Marsh, 145 So. 3d 744, 748 (Ala. 2013); Eastland v. U.S.
Servicemen’s Fund, 421 U.S. 491, 502-03 (1975). That
provision absolutely protects legislators against such
intrusion and ensures that they may perform their
constitutional function. Their absolute immunity from this
suit compels reversal and dismissal.
Finally, Governor Bentley’s due process claims are
without merit. Neither Governor Bentley’s life, his
liberty, nor his property are at risk in the House’s
impeachment proceedings, and so he has no constitutionally
protected right under the Fourteenth Amendment. To claim
otherwise, as he does, is to contend that the Office of the
Governor is his private property. More than a century of
United States Supreme Court precedent holds otherwise.
12
ARGUMENT
I. The Separation of Powers Doctrine Deprived the Trial Court of Subject Matter Jurisdiction and Precludes Judicial Review of the Impeachment Power of the House of Representatives.
“In Alabama, separation of powers is not merely an
implicit ‘doctrine’ but rather an express command; a
command stated with a forcefulness rivaled by few, if any,
similar provisions in constitutions of other sovereigns.”
Ex parte James, 836 So. 2d 813, 815 (Ala. 2002). The
Alabama Constitution expressly provides that “[t]he
government of the State of Alabama shall be divided into
three distinct branches: legislative, executive, and
judicial.” Ala. Cost., art. III, § 42(b).
Moreover, as reflected in Section 42(c), and as
formerly found in Section 43 before Amendment 905, “[t]o
the end that the government of the State of Alabama may be
a government of laws and not of individuals, and except as
expressly directed or permitted in this constitution, the
legislative branch may not exercise the executive or
judicial power, the executive branch may not exercise the
legislative or judicial power, and the judicial branch may
not exercise the legislative or executive power.” Ala.
Const., art. III, § 42(c).
13
The separation of powers doctrine enshrined in the
Alabama Constitution “limits the jurisdiction of [the]
Court.” BJCCA, 912 So. 2d 204, 212 (Ala. 2005). Thus, this
Court has repeatedly emphasized that the judiciary, which
is unique in its responsibility for the autonomy of the
other governmental branches, must exercise “[g]reat care .
. . not to usurp the functions of other departments of
government.” Id. (citing Piggly Wiggly No. 208, Inc. v.
Dutton, 601 So.2d 907 (Ala. 1992)).
“[J]ust as this Court will declare legislative
usurpation of the judicial power violative of the
separation-of-powers provision of our Constitution, so it
must decline to exercise the judicial power when to do so
would infringe upon the exercise of the legislative power.”
Id. (citing Ex parte Jenkins, 723 So. 2d 649, 653-54 (Ala.
1998)).
This Court’s decision in Ex parte James, 836 So. 2d 813
(Ala. 2002) is illustrative. There, the Court considered
the justiciability of the question of the constitutionality
of the State’s method for funding the public-school
systems. After issuing four opinions over the course of
nine years, many of which raised concerns over the
14
separation of powers, the Court was “[c]ompelled by the
weight of [§ 43’s separation of powers] command and a
concern for judicial restraint” to dismiss the action. Id.
at 819. In reaching this conclusion, the Court adopted the
rationale of Justice Houston’s prior concurring opinion
from the same litigation that the Court can decide only
what the Constitution allows, and no more:
[I]t is the duty of the Judicial Department of Alabama government only to determine what the Constitution of Alabama requires. In my opinion, the Legislative Department and the Executive Department, and not the Judicial Department, have the power and duty to implement a plan that would make this system equitable (and hence, according to the trial court's liability order, constitutional). I trust that the Legislative Department and the Executive Department will proceed to exercise the power and perform the duty they have been called upon to exercise and perform to make Alabama's public educational system constitutional. The ‘Separation of Powers' provision of the Constitution of Alabama of 1901 (Art. III, § 43) prohibits me from doing more, without resorting to unconstitutional judicial activism, which I have heretofore avoided.”
Id. at 817 (quoting Ex parte James, 713 So.2d 869, 895
(Ala. 1997) (Houston, J. concurring in the result in part
and dissenting in part)) (emphasis added in Ex parte James,
836 So. 2d 813).
Based on the former Section 43, now Section 42(c), the
Court reasoned that “any specific remedy that the judiciary
15
could impose would, in order to be effective, necessarily
involve a usurpation of that power entrusted exclusively to
the Legislature.” Id. at 819. Accordingly, “to remain
obedient” to Section 43’s strict separation of powers
mandate, the Court “retreat[ed] from this province of the
legislative branch” and “return[ed] [the issue] in toto to
its proper forum” – the Legislature. Id.
The same concerns are present here. The Alabama
House of Representatives is constitutionally, and
exclusively, vested with the power to impeach the
Governor of the State of Alabama. Ala. Const. § 173.
The Constitution provides no role for the judicial
department of Alabama Government in that process.
With respect to how the House and Senate carry out
their respective roles under Section 173, the Constitution
provides no guidance. It imposes no procedural
requirements on either body; it guarantees the officer
subject to impeachment no procedural protections; and,
importantly, it provides for no judicial review of
impeachment and removal by the Legislature.
Instead, Section 53 of the Alabama Constitution
expressly vests the House with the “power to determine
16
the rules of its proceedings[.]” This Court has
repeatedly recognized that the Legislature’s power to
adopt its rules “is unlimited except as controlled by
other provisions of our Constitution.” Opinion of the
Justices No. 185, 179 So. 2d 155, 158 (Ala. 1965)
(citing Ala. Const., art. IV, § 53). Thus, even “[t]he
Courts cannot look to the wisdom or folly, the
advantages or disadvantages, of the rules which a
legislative body adopts to govern its own proceedings.”
Opinion of the Justices No. 265, 381 So. 2d 183, 185
(Ala. 1980).
In the absence of any express constitutional
restraints, the doctrine of separation of powers mandates
the House’s impeachment power, including any rules and
procedures adopted with respect thereto, is absolute,
exclusive, and supreme. Any judicial review of the House’s
process under Section 173 “would necessarily involve a
usurpation of that power entrusted exclusively to the
[House].” See Ex parte James, 836 So. 2d at 819; see also
BJCC, 912 So. 2d at 212 (the judiciary must “decline to
exercise the judicial power when to do so would infringe
upon the exercise of the legislative power.”).
17
Accordingly, this action should be dismissed for lack of
jurisdiction, and the matter of impeachment returned to the
exclusive province of the House.
II. The Impeachment Power of the House of Representatives Is a Nonjusticiable “Political Question.”
This Court has held that courts must not decide a
“political question,” “that is, one reserved for, or more
suitably determined by, one of the political branches.” See
BJCC, 912 So. 2d at 215. If any one or more of the
following six factors applies, then a trial court must
dismiss for lack of jurisdiction:
[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Id. at 214-15 (quoting Baker v. Carr, 369 U.S. 186, 217
(1962).
Although this Court looks to the federal Baker v. Carr
factors to assess whether a question is a political one, it
18
defers to the political branches on these questions far
more readily than the federal courts do. See BJCC, 912 so.
2d at 214 (finding that because Ala. Const. § 43 expressly
commands that “the judicial branch ‘shall never exercise
the legislative and executive powers, or either of them,’
this Court will not decide ‘political questions,’ even if
submitted to it”). This heightened deference to the
political branches underscores a significant difference
between the United States Constitution and the Alabama
Constitution: “the Constitution of the United States
prohibits Congress from exercising any power not expressly
granted to it by the Constitution, while the Constitution
of Alabama allows the legislature to exercise all power not
expressly prohibited by the Constitution.” Id. at 214 n.13.
In that regard, the United States Supreme Court case of
Nixon v. United States, 506 U.S. 224 (1993), is highly
relevant. Walter Nixon was a federal judge convicted of
lying to a federal grand jury. After he was impeached by
the House, the Senate referred the matter to a committee to
receive evidence and take testimony. After the committee
conducted its proceedings, the Senate voted to convict.
19
Nixon sued in federal court arguing that the referral
to the Senate committee violated the federal constitution’s
provision requiring the Senate to try all impeachments.
Nixon sought a declaratory judgment that his impeachment
conviction was void. Relying principally on the first two
Baker v. Carr factors, the Supreme Court rejected Nixon’s
arguments as non-justiciable.
“Judicial involvement in impeachment proceedings, even
if only for purposes of judicial review, is
counterintuitive because it would eviscerate the ‘important
constitutional check’ placed on the Judiciary by the
Framers.” 506 U.S. at 235. Moreover, “opening the door of
judicial review to the procedures used by the Senate in
trying impeachments would expose the political life of the
country to months, or perhaps years, of chaos.” Id. at 236
(quotation marks omitted). These same statements apply to
Governor Bentley’s request that the Alabama judiciary
intervene in the House’s impeachment procedures.
Although the presence of any one of the Baker v. Carr
factors is determinative, there are several present
here. At a minimum, this case presents a nonjusticiable
political question because (1) the power of impeachment is
20
textually committed by the Constitution to the House of
Representatives; (2) there are no judicially discoverable
and manageable standards for the courts to resolve this
issue; (3) the trial court’s order expresses a lack of the
respect due to the House of Representatives; and (4) a
pronouncement by the judicial branch on this legislative
question would risk an embarrassing conflict between two
co-equal branches of State government.
A. The power of impeachment is textually committed by the Constitution to the House of Representatives.
As Governor Bentley admitted in his Brief to the trial
court, “there can be no question that impeachment power has
been committed to the House of Representatives by Art. VI,
§ 173 of the Alabama Constitution.” Brief (Doc. 4) at 50;
see also Compl. at ¶ 132 (“The Constitution has entrusted
to the House of Representatives the task of preferring
articles of impeachment against a sitting governor.”).
That is unquestionably true based upon the plain language
of Section 173, which provides, in pertinent part:
The governor . . . may be removed from office . . . by the senate . . . on articles or charges preferred by the house of representatives. . . . The senate . . . shall hear and try such articles of impeachment against the governor . . . as may be preferred by the house of representatives.
21
Governor Bentley argues that the House has exceeded the
limits of its impeachment authority under Section 173
because it has exercised its authority in a manner
inconsistent with “other constitutional provisions.” Brief
(Doc. 4) at 50. Governor Bentley does not, however, cite to
any “other constitutional provision” that might create a
justiciable question due to an arguable conflict with
Section 173. In fact, there is none.
A search for any provisions in the Constitution which
might be read to limit the House’s plenary impeachment
power yields, instead, only provisions which confirm
it. In particular, Section 53, as noted above, gives the
House the “power to determine the rules of its
proceedings.” Thus, in the absence of guidance from
Section 173 itself, the House may adopt any rules it sees
fit under Section 53.
The law in Alabama is clear: in order for there to be
a justiciable question concerning the constitutionality of
a legislative act, there must be a provision of the
Constitution that limits the legislature’s authority.
BJCCA, 912 So. 2d at 218 (finding that justiciability
“rest[s] on the existence of a separate constitutional
22
provision limiting the authority of the legislature”); Ex
parte Marsh, 145 So. 3d 744, 749 (Ala. 2015) (“[T]he
Alabama Constitution gives the legislature the unlimited
power to determine the rules governing its own proceedings
unless another provision of the Alabama Constitution
provides otherwise.”).
In fact, the decisions cited by Governor Bentley prove
this point. See, e.g., Magee v. Boyd, 175 So. 3d 79, 105-
106 (Ala. 2015) (finding that the question presented was
justiciable because the plaintiffs alleged “that the
legislature violated mandatory provisions of the Alabama
Constitution [Ala. Const. §§ 61, 63, and 45],” and,
therefore, “[t]he plaintiffs’ complaint requires an
interpretation of the Constitution”); State of Alabama ex
rel. James v. Reed, 364 So. 2d 303, 306 (Ala. 1978)
(finding that the question presented was justiciable
because Ala. Const. art IV, § 60 “is a specific
constitutional limitation on legislative authority, and
judicial enforcement of its mandate does not derogate the
principle of separation of powers”).
Because Section 173 exclusively commits the power to
impeach to the House, with no role for any other body of
23
government, the manner in which the House conducts itself
is non-justiciable.
B. There are no judicially discoverable and manageable standards for the courts to resolve this issue.
In the absence of any provision of the Constitution
limiting the impeachment powers of the House, there are
likewise no standards for the courts to use to resolve the
questions raised by Governor Bentley. “The Constitution of
Alabama [is] the only source of any limitation on the
authority of the legislature,” and if “the legislature’s
power to determine its rules regarding [its] procedures is
not limited by the text of the Constitution,” then “there
is no manageable standard this Court can discover to guide
our review of the legislative action at issue in this
case.” BJCCA, 912 So. 2d at 218-19.
This is particularly the case where the legislative
power in question is the power to impeach. Alexander
Hamilton famously described impeachable offenses as “of a
nature which may with peculiar propriety be denominated
POLITICAL, as they relate chiefly to injuries done
immediately to the society itself.” Hamilton, Alexander,
The Federalist Papers, No. 65 (Penguin Group, First Mentor
24
Printing, April 1961), at 396 (capitalization in original).
Because there are no judicially discoverable and manageable
standards for the courts’ use in resolving questions about
such a proceeding, those questions inherently are political
and nonjusticiable.
C. The Order expresses a lack of the respect due to the House of Representatives.
The Order enjoins the House of Representatives from:
(1) “Holding any hearings in accordance with the procedure
proposed by the Judiciary Committee’s Special Counsel;”4 (2)
“Making any recommendation to the full House of
Representatives concerning the impeachment of Governor
Robert Bentley;” and (3) “Conducting any proceedings that
do not afford the Governor due process under the law.”
The first and second prohibitions are directed to
legislative actions expressly mandated by the House’s own
rules, or those of its standing committee, which were
adopted for the purpose of discharging its constitutional
4 The procedures governing the Committee’s hearings are in accordance with the Amended Committee Rules of the House Judiciary Committee for the Impeachment Investigation of Governor Robert Bentley (“Amended Committee Rules”). The Rules were adopted pursuant to House Rule 79.1(c) during an open hearing on September 27, 2016, at which Governor Bentley’s counsel was present and was allowed to be heard.
25
duty under Section 173.5 The third prohibition effectively
vests in the Circuit Court of Montgomery County judicial
oversight of the House’s proceedings. Indeed, the court
has set the date for a “Show Cause Hearing” at which
presumably the House of Representatives will be required to
submit its procedures for the court’s review and approval.
When the Alabama House of Representatives undertakes
its constitutionally-committed duties, it answers to the
people of Alabama, not to the Circuit Court of Montgomery
County. Judicial review of the House’s rules for its own
proceedings subordinate the House to the judiciary, and
thus expresses a lack of the respect due a coordinate
branch of government. The question presented is therefore
nonjusticiable.
D. A pronouncement by the judicial branch on this legislative question would risk further conflict between the branches of government and further embarrassment.
Governor Bentley notes that “[t]he executive and
legislative branches have both already publicly advanced 5 See Rule 2, Amended Committee Rules (“Hearings shall be scheduled and presided over by the Chair and conducted in accordance with House Rules, unless specifically provided for by these rules.”); House Rule 79.1(f) (“Upon the conclusion of its investigation, the committee shall submit its report and recommendation regarding impeachment to the Clerk of the House for consideration by the body.”).
26
diametrically opposed views” of these questions.
Memorandum at 53. That is, of course, not the germane
question. The question is whether a pronouncement by the
judiciary enjoining the House from carrying out its proper
function under Section 173 of the Constitution would result
in further embarrassment to this State. It seems certain
that it would; and the question, therefore, is
nonjusticiable.
III. The Speech or Debate Clause Protects the Members of the Judiciary Committee and Prohibits this Action.
The Speech or Debate Clause of the Alabama
Constitution, Ala. Const. art. IV, § 56, protects
legislators “against inquiry into acts that occur in the
regular course of the legislative process . . . .” Ex
parte Marsh, 145 So. 3d 744, 748 (Ala. 2013). It operates
as an “absolute bar to interference,” whether by criminal
action or civil action, for legislators acting “within the
sphere of legitimate legislative activity.” See Eastland
v. U.S. Servicemen’s Fund, 421 U.S. 491, 502-03 (1975).6
“The purpose of the Clause is to ensure that the
legislative function that the Constitution allocates to 6 This Court has looked to federal decisions interpreting the Speech or Debate clause in applying Alabama’s Speech or Debate Clause. See Ex parte Marsh, 145 So. 3d 744 (2013).
27
Congress may be performed independently.” Id. at 502. In
the context of civil actions, the United States Supreme
Court has recognized that “[a] private civil action,
whether for an injunction or damages, creates a distraction
and forces Members to divert their time, energy, and
attention from their legislative tasks to defend that
litigation.” Id. at 503. Likewise, “[p]rivate civil actions
also may be used to delay and disrupt the legislative
function.” Id.
Governor’s Bentley’s request for an 11th hour
injunction is exactly that — an attempt to divert the House
Defendants’ time, energy, and attention from executing
their legislative duties immediately at hand and to delay
and disrupt the legislative function.
This Court recently affirmed that the law in Alabama
“has conferred upon members of the legislative bodies an
absolute privilege from certain causes of action stemming
from the performance of their legislative functions.” Ex
Parte Marsh, 145 So. 3d at 749. The immunity afforded to
Alabama legislators “prevents probes for evidence with
which to support the litigant’s challenge to a legislative
28
decision as improperly motivated, procedurally defective,
or otherwise.” Id. at 750.
In Ex parte Marsh, this Court granted a writ of
mandamus directing the trial court to dismiss a complaint
alleging that certain members of the Legislature violated
the Open Meetings Act and legislative rules in passing the
Alabama Accountability Act. See id. at 748-751. The
Court did not analyze whether the Act or the legislative
rules were broken. See id. Rather, it acknowledged that
“[i]t is not the role of the judiciary to require the
legislature to follow its own rules.” Id. at 751.
Here, Governor Bentley not only asks for the Court to
ignore the separation of powers and enjoin an on-going
legislative proceeding, he further requests that the
judiciary dictate the rules that the House must follow in
exercising its exclusive impeachment power. The Governor’s
request far exceeds the “judicial second-guessing of the
legislature’s internal actions, motivation, and procedural
decisions” that this Court condemned in Ex parte Marsh.
145 So. 3d at 751.
The fact that the Governor claims his alleged due
process rights have been violated does not change the
29
analysis. Setting aside the fact that the Governor has no
due process interests at stake in the impeachment
proceedings, as explained below, an alleged violation of
the Constitution does not lift the immunity granted to the
legislator. See Eastland, 421 U.S. at 510.
The United States Supreme Court in Eastland declared
legislative immunity so broad that it applies “even though
[the legislator’s] conduct, if performed in other than
legislative contexts, would in itself be unconstitutional.”
Id. In addressing the potential risk of abuse that could
result, the Court held that such risk was “the conscious
choice of the Framers” and that a broad interpretation was
required “to provide the independence which is [the
legislator’s] central purpose.” Id.
In Porteous v. Baron, 729 F. Supp. 2d 158 (D.C.C.
2010), a suspended judge sought to enjoin counsel for the
Impeachment Task Force from introducing his testimony in
his impeachment proceedings. Id. at 166. The court
recognized that the “Speech or Debate Clause protects the
independence and autonomy of the Legislative Branch from
judicial intrusion” and “is critical to ensuring the
Constitution’s division of powers.” Id. The question the
30
court asked was whether “the conduct [the judge] sought to
enjoin falls legitimately within the scope of legislative
activity” not “whether the specific conduct is unlawful.”
Id. The court concluded that the judge’s attempt to
“circumvent the Senate” was “an affront to our
constitutional order” and barred by the immunity afforded
by the Speech or Debate Clause. Id.
Governor Bentley attempts not just to dictate how the
House Judiciary Committee proceedings will take place, but
to thwart them all together. There can be no dispute,
however, that Alabama’s Constitution grants the House with
the sole power to impeach. As a result, the House’s actions
under Section 173 are within the broad “sphere of
legitimate legislative activity.” The House Defendants
enjoy absolute immunity against any suit arising from their
actions, and the trial court lacked jurisdiction to enjoin
them.7
7 Governor Bentley’s reliance on an opinion from the impeachment of Connecticut’s governor finding that the state’s Speech or Debate Clause did not prohibit the governor’s suit is misplaced. In Connecticut, the governor attempted to quash a subpoena to force him to testify during his impeachment proceedings, arguing that the legislative authority to investigate impeachments did not extend to compelling testimony against the chief executive of the state. See Office of the Governor v. Select Comm. of
31
IV. Governor Bentley’s Due Process Complaints Do Not Justify Judicial Intervention in the House’s Affairs.
Governor Bentley’s efforts to manufacture a justiciable
controversy based on his assertion that the House
Defendants are denying him due process are without merit.
As noted above, Section 173 imposes no procedural
requirements on the House in investigating the Governor for
impeachable conduct and provide the Governor under
investigation with no procedural guaranties (although the
Committee adopted rules that provide Governor Bentley more
procedural safeguards than the average citizen who is the
target of a grand jury investigation). The Federal
Constitution and this Court’s decisions under Sections 174
and 175 of the Alabama Constitution do not alter the
analysis.
Inquiry, 858 A.2d 709 (Conn. 2004). Ultimately, the Supreme Court of Connecticut rejected the Governor’s attempt to dictate the procedures of the impeachment proceedings, and it affirmed the denial of the Governor’s motion to quash. Id. In finding that the Speech or Debate Clause did not bar it from reaching the merits of the governor’s claim, however, it relied on the fact that the allegations centered on legislative actions “outside the sphere of legitimate legislative activity.” Id. at 567.
32
A. The Federal Due Process Clause Does Not Apply Because Governor Bentley Does Not Have a Private Property Interest in the Office of the Governor.
The Due Process Clause of the Fourteenth Amendment to
the United States Constitution provides that no State may
“deprive any person of life, liberty, or property, without
due process of law[.]” U.S. Const. art. XIV, § 1. The
threshold issues typically are (1) whether there has been a
deprivation of (2) “interests encompassed by the Fourteenth
Amendment’s protection of liberty and property.” Board of
Regents of State Colleges v. Roth, 408 U.S. 564, 569-70
(1972).
No protected interest is at stake in any of the
proceedings contemplated by Section 173 of the Alabama
Constitution. If impeached by the House, Governor Bentley
will be suspended from office pursuant to Section 127,
subject to reinstatement if acquitted in the Senate.8 If
convicted by the Senate, the penalties are limited by
Section 176 to “removal from office, and disqualifications
8 “In case of the impeachment of the governor, ... the power and authority of the office shall, until the governor is acquitted, ... devolve in the order herein named, upon the lieutenant governor, president pro tem. of the senate, speaker of the house of representatives, attorney-general, state auditor, secretary of state, and state treasurer.”
33
from holding office, under the authority of this state, for
the term for which the officer was elected or appointed.”
By the express terms of Sections 127 and 176, Governor
Bentley’s life and liberty clearly are not in jeopardy.
Cf. Roth, 408 U.S. at 572 (“Without doubt, [liberty]
denotes not merely freedom from bodily restraint but also
the right of the individual to contract, to engage in any
of the common occupations of life, to acquire useful
knowledge, to marry, establish a home and bring up
children, to worship God according to the dictates of his
own conscience, and generally to enjoy those privileges
long recognized ... as essential to the orderly pursuit of
happiness by free men.”) (quotation marks and citations
omitted).
Thus, in arguing for protections under the Due Process
Clause, Governor Bentley necessarily contends that he
possesses a private property interest in holding the
highest elected public office in Alabama. This notion has
been roundly rejected by the United States Supreme Court
for more than a century.
In Taylor v. Beckham, 178 U.S. 548, 577 (1900), the
Supreme Court held that it lacked jurisdiction to consider
34
the merits of a challenge to an allegedly stolen Kentucky
gubernatorial election because the Due Process Clause does
not apply to public office: “The decisions are numerous to
the effect that public offices are mere agencies or trusts,
and not property as such.... [T]he nature of the relation
of a public officer to the public is inconsistent with
either a property or a contract right.” In Snowden v.
Hughes, 321 U.S. 1, 6 (1944), the Supreme Court affirmed
Taylor’s holding: “More than forty years ago, this Court
determined that an unlawful denial by state action of a
right to state political office is not a denial of a right
to property or of liberty secured by the due process
clause.”
In the decades since, these principles have been
applied by courts nationwide to reject federal due process
claims arising from alleged improper denial of, or removal
from, a variety of state elected offices. E.g., Wilson v.
Birnberg, 667 F.3d 591, 597-98 (5th Cir. 2012) cert. denied
133 S.Ct. 32 (2012) (Texas county commission); LaPointe v.
Winchester Bd. of Educ., 366 Fed. App’x 256, 257-58 (2nd
Cir. 2010) (Connecticut local board of education); Velez v.
Levy, 401 F.3d 75, 86 (2nd Cir. 2005) (New York City
35
community school board); D’Agostino v. Delgadillo, 111 Fed.
App’x 885, 886 (9th Cir. 2004) (Los Angeles city attorney);
Parks Miller v. Centre County, No. 4:15-cv-1754, 2016 WL
2752645, at *17 (M.D. Pa. May 11, 2016) (Pennsylvania
district attorney); Jennerjahn v. City of Los Angeles, No.
2:15-cv-263, 2016 WL 1358950, at *12 (C.D. Cal. March 15,
2016) (Los Angeles neighborhood council); Copeland v. City
of Union, Missouri, No. 4:15-cv-554, 2016 WL 259379, at *3
(E.D. Miss. Jan. 20, 2016) (Missouri city tax collector);
Ford v. Donovan, 891 F. Supp. 2d 60, 66 (D.D.C. 2012)
(District of Columbia public housing council president);
Bd. of Educ. of Shelby County, Tenn. v. Memphis City Bd. of
Educ., No. 11-2101, 2011 WL 3444059, at *56 (W.D. Tenn.
2011) (Tennessee local board of education); but see
Abrahamson v. Neitzel, 120 F. Supp. 3d 905, 920-23 (W.D.
Wisc. 2015) (acknowledging Taylor and Snowden but
determining that “even if” plaintiff “has a
constitutionally protected interest in the position of
[Wisconsin] chief justice,” she received “all the process
that was due” with respect to constitutional amendment
changing method of selecting chief justice).
36
This Court likewise has rejected the notion that a
State officeholder has a property interest in his or her
office. “‘A public office which the legislature creates is
not the property of the office holder within the
constitutional provision against depriving a man of
property, nor does it ever become a vested right as against
the right of the state to remove him.’” Moore v. Watson,
429 So. 2d 1036, 1038 (Ala. 1983) (quoting Simpson v. Van
Ryzin, 265 So.2d 569, 573 (1972)). “The fact that the
Constitution throws a mantle of protection around a public
officer, such as a limit on the power of the legislature to
abolish the office, that does not change the character of
the office or make it property.” City of Birmingham v.
Graffeo, 551 So. 2d 357, 363 (Ala. 1989) (citing Taylor,
supra).
These pronouncements apply with even greater force to a
constitutionally-created office. “[A]ll political power is
inherent in the people, and all free governments are
founded on their authority, and instituted for their
benefit.” Ala. Const. § 2. Thus, all offices created
under the Alabama Constitution “derive their [power] from
the people themselves.” See Opinion of the Justices No.
37
148, 81 So. 2d 881, 885 (Ala. 1955) (quotation marks and
citation omitted). It is antithetical to the concept of a
free government, founded on the people’s authority, for
Governor Bentley even to suggest that he has a “claim of
entitlement” to remain in office such that it is protected
under the Due Process Clause. See Stephenson v. Lawrence
County Bd. of Educ., 782 So. 2d 192, 200-01 (Ala. 2000)
(rejecting due process challenge to school board’s
dismissal of its custodian of school funds).
For the foregoing reasons, the Due Process Clause does
not apply to the Legislature’s proceedings under Section
173 of the Alabama Constitution.9
9 Two cases relied upon by Governor Bentley in the trial court, McCarley v. Sanders, 309 F. Supp. 8 (M.D. Ala. 1970), and State v. Reed, 364 So. 2d 303 (Ala. 1978), do not change this analysis. In McCarley, the federal court held that the Alabama Senate violated the Due Process Clause when it voted to expel a senator for taking a bribe. Although the court acknowledged Taylor and Snowden, it construed later United States Supreme Court opinions holding that unelected state employees could not be fired for exercising fundamental constitutional rights as effectively having overruled those cases. In Reed, this Court stated in dicta and relegated to a footnote without any analysis that “the legislature must afford a member the minimum procedural due process requirements of the federal constitution.” 364 So. 2d at 307, n.3 (citing McCarley). The cases cited above, including this Court’s decision in City of Birmingham v. Graffeo, make clear that Taylor remains good law. Thus, McCarley and Reed’s footnote are
38
B. This Court’s Statements about Due Process under Section 174 and 175 Do Not Allow the Judiciary To Dictate the Legislature’s Proceedings under Section 173.
Although this Court has said that due process is
required in impeachment proceedings of inferior judicial
and executive officers in the courts under Sections 174 and
175, there is no constitutional basis to impose any such
requirements on the Legislature in its proceedings under
Section 173.
Section 173 is fundamentally different from Sections
174 and 175. While impeachment proceedings in the courts
under Sections 174 and 175 may proceed only according to
“such regulations as may be prescribed by law,” Section 173
is “complete and self-executing” and thus requires nothing
more than its own words “to put it into full operation.”
State v. Buckley, 54 Ala. 599, 615 (1875) (discussing
analogous provisions of the Constitution of 1875). Thus,
of limited value. Furthermore, they do not change the analysis with respect to separation of powers, which precludes the judicial department from exercising jurisdiction to impose upon the Legislature any rules or procedures in the absence of an express constitutional mandate. See In re Opinion of the Justices No. 112, 47 So. 2d 586 (Ala. 1950) (refusing on separation of powers grounds to answer the Governor’s questions concerning the power of the Senate to expel a member under Section 53).
39
it simply cannot be true, as Governor Bentley asserts, that
a host of unspecified and unwritten procedural requirements
are manifest in Section 173.
Section 173 is “complete” as it is. Although it is
silent as to the procedures that either body of the
Legislature must follow in carrying its respective role,
Section 53 allows each body to fill that void by adopting
“the rules of its proceedings.” As discussed above, the
Legislature’s self-governing power is plenary unless
limited elsewhere in the Constitution. No provision of the
Alabama Constitution gives the executive or judicial
departments of this State the power to dictate to either
body of the Legislature what rules it must follow.
40
CONCLUSION
For the foregoing reasons, the trial court’s order
enjoining the House Defendants from conducting hearings in
furtherance of the House’s exclusive impeachment authority
under Section 173 and requiring them to show cause to the
trial court should be reversed and, on remand, the trial
court should be directed to dismiss this case with
prejudice.
/s/ Jackson R. Sharman III One of the Attorneys for Appellants The House of Representatives Judiciary Committee and its Members
OF COUNSEL:
Jackson R. Sharman III (SHA048) [email protected] Wesley B. Gilchrist (GIL066) [email protected] Rachel M. Lary (LAR016) [email protected] LIGHTFOOT, FRANKLIN & WHITE, L.L.C.The Clark Building 400 North 20th Street Birmingham, AL 35203-3200 (205) 581-0700 (205) 581-0799 (Facsimile)
41
/s/ James L. Entrekin, Jr. One of the Attorneys for Appellant Representative Mac McCutcheon, Speaker of the Alabama House of Representatives
James L. Entrekin, Jr. (ENT002) [email protected] Chief of Staff Office of the Speaker Mac McCutcheon Alabama House of Representatives 11 South Union Street Montgomery, Alabama 36130 (334) 242-7671
42
CERTIFICATE OF SERVICE
I certify that on this 10th day of April, 2017, a true and correct copy of the foregoing was served on counsel of record by depositing a copy of same in the United States Mail, postage prepaid, properly addressed to
David B. Byrne, Chief Legal Advisor William F. Patty, Deputy Legal Advisor Jason Paulk, Deputy Legal Advisor OFFICE OF THE GOVERNOR State Capital Montgomery, Alabama 36130 William C. Athanas, Esq. WALLER LANSDEN DORTCH & DAVIS, LLP 1901 Sixth Avenue North Suite 1400 Birmingham, Alabama 35203 Ross H. Garber, Esq. Susan S. Murphy, Esq. SHIPMAN & GOODWIN, LLP 1875 K. St. NW Washington, D.C. 20006 H. Lewis Gillis Means Gillis Law, LLC 60 Commerce St., Ste. 200 P.O. Drawer 5058 Montgomery, Alabama 36103
/s/ Jackson R. Sharman III Of Counsel
Exhibit A
IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA
OFFICE OF THE GOVERNOR OFALABAMA,
)
BENTLEY ROBERT, GOVERNOR, )Plaintiffs, )
)V. ) Case No.: CV-2017-000206.00
)AL HOUSE OF REP. JUDICIARYCOMMITTEE,
)
JONES MIKE, )HILL JIM, REP, )BLACK MARCEL, REP ET AL, )Defendants. )
ORDER
The Court having considered the Plaintiff's Motion for a Temporary Restraining Order,and for cause shown it is hereby ORDERED that there exists sufficient grounds for theissuance of a Temporary Restraining Order in order to afford the Plaintiff an opportunityto respond to any allegations put forth without suffering immediate and irreparableinjury prior to a Show Cause Hearing.
Therefore, It is Hereby ORDERED, ADJUDGED, and DECREED that the Defendants,their representatives, and their counsel are Hereby ENJOINED from:
1. Holding any hearings in accordance with the procedure proposed by the JudiciaryCommittee's Special Counsel;2. Making any recommendations to the full House of Representatives concerning theimpeachment of Governor Robert Bentley; and3. Conducting any proceedings that do not afford the Governor due process under thelaw.
DONE this 7th day of April, 2017.
/s/ GREG GRIFFINCIRCUIT JUDGE
ELECTRONICALLY FILED4/7/2017 5:15 PM
03-CV-2017-000206.00CIRCUIT COURT OF
MONTGOMERY COUNTY, ALABAMATIFFANY B. MCCORD, CLERK
DOCUMENT 25
Exhibit B
IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA
OFFICE OF THE GOVERNOR OFALABAMA,
)
BENTLEY ROBERT, GOVERNOR, )Plaintiffs, )
)V. ) Case No.: CV-2017-000206.00
)AL HOUSE OF REP. JUDICIARYCOMMITTEE,
)
JONES MIKE, )HILL JIM, REP, )BLACK MARCEL, REP ET AL, )Defendants. )
ORDER
The above styled matter is hereby set for a Show Cause Hearing on May 15, 2017 at9:00 am in Courtroom 3B of the Montgomery County Courthouse located at 251South Lawrence Street, Montgomery, AL 36104.
Any written material pertinent to the hearing shall be filed not later noon on May 11,2017.
DONE this 7th day of April, 2017.
/s/ GREG GRIFFINCIRCUIT JUDGE
ELECTRONICALLY FILED4/7/2017 5:18 PM
03-CV-2017-000206.00CIRCUIT COURT OF
MONTGOMERY COUNTY, ALABAMATIFFANY B. MCCORD, CLERK
DOCUMENT 27
Exhibit C
DOCUMENT 29
DOCUMENT 29
DOCUMENT 29
Exhibit D
IN THE SUPREME COURT OF ALABAMA
April 8, 2017
1160579
Alabama House of Representatives Judiciary Committee et al. v.The Office of the Governor of Alabama and Governor RobertBentley (Appeal from Montgomery Circuit Court: CV-17-206).
ORDER
IT IS ORDERED that the Temporary Restraining Order issuedby the Circuit Court of Montgomery County on April 7, 2017, ishereby STAYED, ex mero motu, pending further order of thisCourt.
IT IS FURTHER ORDERED that Appellants shall file theappellants' brief and any other filings for the Court'sconsideration no later than 10:00 a.m., Monday, April 10,2017. Appellees shall file the appellees' brief and any otherfilings for the Court's consideration no later than 1:00 p.m.,Monday, April 10, 2017.
Stuart, Bolin, Parker, Shaw, Main, Wise, and Bryan, JJ.,concur.
Murdock, J., recuses.
I, Erin Dunagan, as Acting Clerk of the Supreme Court ofAlabama, do hereby certify that the foregoing is a full, true, andcorrect copy of the instrument(s) herewith set out as sameappear(s) of record in said Court.
Witness my hand this 8th day of April, 2017.
Acting Clerk Supreme Court of Alabama
IN THE SUPREME COURT OF ALABAMA
April 8, 2017
cc:Gregory O. Griffin, Sr.Montgomery County Circuit Clerk's OfficeJeffrey P. DossWesley B. GilchristJackson R. Sharman IIIWilliam C. AthanasDavid ByrneH. Lewis GillisJason C. PaulkRoss H. GarberSusan S. Murphy
Exhibit E
Exhibit F
