REL: 09/26/2014
Notice: This opinion is subject to formal revision before publication in the advance
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the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2014
____________________
1111554
____________________
Thomas L. White, Jr., as Comptroller of the State of Alabama
v.
Karen John et al.
Appeal from Montgomery Circuit Court
(CV-12-901064)
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
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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
1
The plaintiffs filed this action against both the
comptroller in his official capacity and against "the Office
of the State Comptroller," and "the Office of the State
Comptroller" is listed as an appellant in the notice of appeal
in this case. For the reasons discussed in Part III.A. of
this opinion, it appears that there is no such entity as "the
Office of the State Comptroller," and, therefore, no such
entity is named as a party in the style of this case.
2
Subject to certain conditions, § 36–1–4.3, Ala. Code
1975, provides that the comptroller may make deductions from
the salary of a State employee upon the employee's request.
Specifically, § 36–1–4.3(a), Ala. Code 1975, provides:
"The state Comptroller shall adopt statewide
policies which provide for deductions from the
salaries of state employees or groups of state
employees whenever a request is presented to the
state Comptroller by a group of participating state
employees equal in number to at least 200 provided,
however, that deductions being made as of April 23,
1985, shall continue to be made. The deductions
shall be made at least monthly and shall be remitted
to the appropriate company, association, or
organization as specified by the employees. The
deductions may be made for membership dues, and
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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
voluntary contributions, and insurance premiums. Any
deduction provided under the provisions of this
section may be terminated upon two months' notice in
writing by a state employee to the appropriate
company, association, or organization and to the
appropriate payroll clerk or other appropriate
officials as specified by the state Comptroller."
3
Section 17-17-5 was substantially amended effective
March 20, 2011, by Act No. 2010-761, Ala. Acts 2010. See
discussion infra.
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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.
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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
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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
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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
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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 questions concern the interpretation
of the Act and specifically ask:
"'1. Is the "or otherwise" language in [the
Act] limited to the use of state mechanisms
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to support political organizations,
regardless of the source?
"'2. Does the term "political activity"
refer only to electioneering activities?'
"_______________
"6In Ysursa, the United States Supreme Court
concluded that 'nothing in the First Amendment
prevents a State from determining that its political
subdivisions may not provide payroll deductions for
political activities.' 555 U.S. 353, 355, 129 S.Ct.
1093, 172 L.Ed.2d 770 (2009)."
(Some footnotes omitted.)
In its submission of the certified questions, the United
States Court of Appeals for the Eleventh Circuit further
limited the federal district court's preliminary injunction,
stating:
"Although the ultimate resolution of this matter
may depend on the Alabama Supreme Court's resolution
of the certified questions, we believe it is
appropriate to narrow the district court's
injunction in the interim. In its memorandum
opinion, the district court issued a preliminary
injunction barring the Act's enforcement in toto.
However, a state's restriction on payroll deductions
for organizations engaged in electioneering
activities would likely be found constitutional
under Ysursa. To the extent the state limits its
enforcement of the Act in this way, it may proceed.
The preliminary injunction remains in place as to
enforcement that extends beyond that range of
conduct."
665 F.3d at 1239.
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This Court released Davis on March 23, 2012. We ruled
that the enactment of the Act rendered moot the action that
had been filed by the AEA, the ASEA, and their political-
action committees because the newly amended § 17-17-5
constituted the effective law on the subject of the legality
of salary deductions for contributions to political-action
committees.
For approximately six months following the Eleventh
Circuit's submission of the certified questions to this Court,
the comptroller continued to execute payroll deductions for
dues from State employees who were members of the AEA and the
ASEA. On June 29, 2012, the comptroller issued a "memorandum"
to "Affected Organizations" regarding "Act 2010-761 Guidelines
(State Comptroller Payroll Deductions, Revised June 2012)"
("the guidelines"). The memorandum first recounted the
comptroller's authority to "adopt statewide policies which
provide for deductions from the salaries of state employees"
as provided in § 36–1–4.3, Ala. Code 1975. It then related
the substance of § 17-17-5 as amended by the Act. The
memorandum then detailed the "Procedure for Requesting Payroll
Deductions for Membership Dues":
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"As required by § 36–1–4.3, at least 200 state
employees must submit a request for a payroll
deduction for membership dues to a particular
organization using a form prescribed by the
Comptroller.
"The request must include the Certification of
an authorized representative of the organization
certifying that the representative has exercised due
diligence to determine that the information provided
in the Certification is true and correct and
agreeing to comply with the requirement of Code §
17-17-5(b)(1) to provide the annual 'detailed
breakdown' of the expenditures of the membership
dues collected by the State by payroll deduction.
That detailed breakdown for the previous calendar
year must be received by the Comptroller not later
than April 30 of the immediately following calendar
year, unless the Comptroller specifies a different
deadline."
Following the statement of procedure, the memorandum
provided "Guidelines for Determining if an Organization is
Engaged in Political Activity and not Eligible to Receive Dues
Via Salary Deduction." This portion of the memorandum
provided:
"For purposes of [the Act], § 1(b), the term
'political activity' refers to the organization's
activity which advocates or opposes the election of
any person who is a candidate for public office.
The organization's activity can be 'political' if it
mentions the name of a particular political party in
a communication, but only if the activity also
includes advocating or opposing election of
candidates, or requests financial support related to
such election. Further, 'political activity'
includes only the following forms of activity:
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"1. Distributing political literature of
any type.
"2. Engaging in or paying for any type of
political advertising in any medium.
"3. Engaging in or paying for any form of
political communication, including
communications which mention the name
of a political candidate.
"4. Phone calling for any political
purpose.
"5. Engaging in or paying for public
opinion polling.
"6. Providing any type of in-kind help or
support to or for a political
candidate.
"7. Making contributions to or contracting
with any entity which engages in any
form of political communication,
including communications which mention
the name of a political candidate.
"The following are not considered 'political
activity' by a certifying organization prohibited by
Section 1(b) of the Act:
"1. Communications, and the coordination
of communications, to or from public
officials about issues of public
concern (i.e., lobbying), if there is
no mention of the words 'elect,'
'vote,' 'support,' 'oppose,' 'ballot'
or 'for' in relation to the election
of a person to office.
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"2. Advertising, distributing literature,
phone calling, polling, and
communicating about issues of public
concern without mention of any person
by name.
"3. Advertising, distributing literature,
and communicating about a person who
has not publicly announced as a
candidate and not made any filing
required of a candidate for the next
election under Alabama law or federal
law.
"4. Advertising, distributing literature,
and communicating regarding a person
who is a publicly announced candidate,
or who made a filing required of a
candidate for the next election, but
only if the communication does not
mention the person's status as a
candidate, and does not use the words
'elect,' 'vote,' 'support,' 'oppose,'
'ballot' or 'for' (or substantially
similar word) in relation to the
election of a person to office.
"5. Public opinion polling on any subject
that does not include the name of a
person who is a publicly announced
candidate or of a person who has made
a filing required of a candidate for
the next election.
"6. Public opinion polling of voters on
the day of an election about
candidates, if limited to asking for
which candidate they voted (i.e., exit
polling).
"7. The use of office space, which is
under the ownership or control of the
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certifying organization, by a person
who is a publicly announced candidate,
or of a person who has made a filing
required of a candidate for the next
election, but only if the space is not
used for planning political activity.
"8. Individual, private, insubstantial use
of the certifying organization's phone
equipment, not made to multiple
recipients in simultaneous fashion,
and not coordinated with multiple
phone calls made by another person.
"9. The private expression of opinion
orally about a candidate by a person
who also is merely an officer of the
certifying organization receiving dues
via salary deduction.
"10. The private solicitation of
contributions for a candidate by a
person [who also is] merely an officer
of the certifying organization
receiving dues via salary deduction.
"11. The private participation in the
management of a political action
committee by a person who also is
merely an officer of the certifying
organization receiving dues via salary
deduction.
"12. Contributing to or contracting with an
entity that is not a political party, a
political action committee (including a
principal campaign committee) and that
is not for the purpose of political
communication.
"Before an organization is barred from arranging
for the collection of its membership dues, or other
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payment, through payroll deduction, the Comptroller
will give written notice to the organization stating
how the organization has violated [the Act], and
will provide it a reasonable opportunity to
demonstrate that a violation has not occurred.
"These guidelines are focused on 'political
activity' that is 'electioneering,' and they do not
list all possible circumstances in which an
organization may be engaged in 'political activity,'
or 'electioneering.' Organizations receiving dues
or other payments, via deduction from the salaries
of public employees[,] are urged to make inquiry to
resolve uncertainty about anticipated activity that
may be covered. Further, these guidelines are
merely interpretive guidelines to enforcing [the
Act], and, given that [the Act] has never been
enforced previously, are subject to revision. For
any such revision, it is intended that notice will
be provided to affected public employees and
organizations, if feasible."
The memorandum also contained a sample "Act 2010-761
Certification Form for Organizations." The form contains
spaces for an organization's name and contact information. If
the organization wishes to receive salary deductions from
State employees, the form requires an individual from the
organization to provide a notarized signature and to certify
under penalty of being barred from receiving deductions that
the organization "will not use any portion of the membership
dues collected by payroll deduction from the pay of its
members who are State employees for political activity as that
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term is defined in [the Act]" and that the organization will
"provide to the State Comptroller a detailed breakdown of the
expenditure of those membership dues not later than the
deadline, and using the forms, prescribed by the Comptroller
from time to time."
The comptroller sent copies of the memorandum to the AEA,
the ASEA, and other organizations that were receiving dues
from State-employee members via salary deductions. On
August 1, 2012, the ASEA submitted its certification to the
comptroller, along with a letter from its counsel, stating, in
part, that the organization submitted the certification
"under protest and without waiving any of its rights
as they relate to any ongoing litigation concerning
[the Act], or related to the rules and regulations
promulgated in your 'Memorandum to Affected
Organizations' dated June 29, 2012. ASEA feels
compelled to submit the Certification in order to
continue the withholding of its membership dues
which are vital to ASEA's ongoing operations and
continued existence."
The AEA declined to submit a certification form and thus was
deemed ineligible to receive dues via payroll deductions. The
guidelines went into effect July 25, 2012.
On August 17, 2012, the AEA, AEA member and State
employee Karen John, the ASEA, and ASEA president Randy Hebson
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(hereinafter sometimes referred to collectively as "the
plaintiffs") sued White in his official capacity as
comptroller and the "Office of the State Comptroller" in the
Montgomery Circuit Court seeking a judgment declaring that the
guidelines are void because, the plaintiffs maintained, they
had been promulgated without following the procedures required
in the Alabama Administrative Procedure Act, §§ 41-22-1
through 41-22-27, Ala. Code 1975 ("the AAPA"), and an
injunction preventing the comptroller from implementing or
enforcing the guidelines in any manner until and unless the
comptroller complied fully with the AAPA.
On the same date, the plaintiffs filed a separate motion
seeking a preliminary injunction prohibiting the
implementation of the guidelines. The comptroller filed a
motion to dismiss the complaint for lack of jurisdiction and
for failure to state a claim; he also filed opposition to the
motion for a preliminary injunction.
On August 30, 2012, the circuit court issued a
preliminary injunction enjoining the implementation of the
guidelines. In pertinent part, the order stated:
"The Court finds and concludes that, unless
preliminary injunctive relief is granted, Plaintiffs
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will suffer irreparable harm, for which there is no
adequate remedy at law. The harm consists primarily
of the fact that the Plaintiffs will not be
receiving the funds that their members have sought
to have deducted and forwarded to the Plaintiffs.
The irreparable nature of this harm and the absence
of an adequate remedy at law are confirmed by the
prospect that the doctrine of sovereign immunity
would shield Defendants from many (perhaps all)
forms of retrospective monetary relief in this case.
"The Court finds and concludes that no
appreciable and legally cognizable harm will occur
to Defendants by virtue of a preliminary injunction;
certainly any such harm, if there is any, does not
outweigh the harm that Plaintiffs would suffer
absent an injunction. Defendants will not have
substantial difficulty maintaining the system of
deductions that has existed for years.
"....
"It is hereby ordered that Defendants, and all
those acting in concert with them:
"a) must not enforce the Guidelines (Rules) that are
the subject of this lawsuit; and
"b) until further order of this Court, must, in all
future pay periods, honor all employee requests for
payroll deductions pertaining to, or involving, AEA
and ASEA.
"This injunctive order will remain in effect
during the pendency of this case, unless and until
modified by the Court.
"The case will be set for final hearing on the
merits in due course, unless it is first resolved
through ruling on motion(s)."
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On October 25, 2013, this Court issued its opinion
answering the two questions certified to it by the Eleventh
Circuit Court of Appeals. State Superintendent of Educ. v.
Alabama Educ. Ass'n, [Ms. 1110413, Oct. 25, 2013] ___ So. 3d
___ (Ala. 2013). We held in response to the first certified
question that the "or otherwise" language in § 17-17-5 as
amended by the Act is, in fact, limited to the use of State
mechanisms to arrange for payments to political-action
committees and other organizations that use any portion of
their dues for political activities. As for the second
certified question –- whether the term "political activity"
refers only to "electioneering activities" -- we answered it
in the negative. Among other things, we quoted from Black's
Law Dictionary the definition of "political" as "'pertaining
to or relating to the policy or the administration of
government .... [O]f or pertaining to exercise of rights and
privileges or the influence by which individuals of a state
seek to determine or control its public policy ...." ___
So. 3d at ___.
On February 5, 2014, in response to this Court's answers
to its certified questions, the Eleventh Circuit Court of
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Appeals released its opinion in Alabama Education Ass'n v.
State Superintendent of Education, 746 F.3d 1135 (11th Cir.
2014). Having received this Court's answers to the certified
questions previously posed by it, the Eleventh Circuit
explained, among other things, that "[s]ome of AEA and
A–VOTE'S conduct indisputably falls within the Act's
definition of political activity, and therefore the
challengers cannot bring a facial challenge arguing that the
term is vague based on other action applications." 746 F.3d
at 1140. Holding that it was "not substantially likely [that]
the challengers will succeed on the merits" of their claim,
the Eleventh Circuit held that the district court had erred in
entering a preliminary injunction on the ground that the Act
was void as being vague. 746 F.3d at 1140.
On February 4, 2014, the day before the Eleventh Circuit
Court of Appeals released its opinion, the comptroller filed
a motion in the present case seeking permission to submit to
this Court a "Second Supplemental Brief" that would
incorporate additional argument based upon this Court's
answers to the Eleventh Circuit's certified questions in State
Superintendent of Education v. Alabama Education Ass'n, supra.
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The comptroller's motion noted that our decision in that case
"altered the legal landscape for the appeal at bar" and
further stated:
"This Court's ruling construed [the Act] to give it
a broader reach than the Comptroller did when he
announced the Guidelines that are disputed in this
case. As a result, the Comptroller is due to revise
the limits on his enforcement of [the Act] reflected
in the Guidelines. Particularly, the Comptroller is
due to revise his view that [the Act] does not apply
to limit salary deduction for organizations spending
dues on issue-based ballot measures."
The comptroller's motion advised the Court of "the impending
and possible changes to the Guidelines that may alter the
factual circumstances underlying the Court's decision in this
appeal." The comptroller also stated that "[a]bandonment of
the Guidelines would be permissible because [this Court's]
October 2013 ruling itself offers sufficient guidance to
persons effected by [the Act]."
After taking note of the more expansive definition of
"political activity" in this Court's decision in response to
the certified questions, the comptroller's Second Supplemental
Brief concluded:
"The Comptroller is due to revise his Guidelines to
be consistent with Ysursa, with the Eleventh
Circuit's direction, and with this Court's
interpretation of the Act. The Comptroller plans to
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formulate revisions to the Guidelines and hopes to
implement revisions by March 31, 2014.
"In addition to revising the Guidelines, the
Comptroller is also considering rescinding them
altogether now that the October 2013 ruling itself
provides guidance about applying [the Act].
Abandoning the Guidelines would end the unseemly,
uneven enforcement of [the Act] caused by the
[trial] court's overreaching injunction.... By
eliminating the Guidelines, the Comptroller would
eliminate the basis for the injunction against Act
761, and end the special treatment it accords AEA
and ASEA."
Several days later, the AEA and Karen John filed a
"Response" to the comptroller's motion to supplement his
brief. This response was filed on February 11, 2014, i.e.,
following the release by the Eleventh Circuit Court of Appeals
of its opinion in the certified-question case. AEA and John
did not oppose the motion for supplemental briefing, but
"point[ed] out that the status of the case is now in an
unsettled posture; and ... suggest[ed] that the time for
filing a responsive brief should not begin to run until
certain further developments have made this case truly ready
for final consideration." Taking note of this Court's
decision in State Superintendent of Education v. Alabama
Education Ass'n, supra, answering the certified questions
posed by the Eleventh Circuit and the latter court's
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incorporation of those answers into its February 5, 2014,
opinion, the AEA and John stated: "Thus it is now known that
the Comptroller's 'Guidelines' do not reflect a correct
interpretation of the Act." The response goes on to state
that, as a result of these decisions, "the situation is still
in flux in two important ways, and these appellees
respectfully suggest that it would be wiser and more efficient
for this Court to receive supplemental briefs when the
now-fluid situation has resolved into a settled form."
The first way in which the AEA and John asserted that the
situation was still "in flux" was to explain that the Eleventh
Circuit's opinion of February 5, 2014, was not yet final and
that the parties to the appeal pending in this Court should
await a "final decision and mandate" by that court. The AEA
and John also stated:
"[T]he situation is in flux in that the Comptroller
has now stated -- in his latest motion to this Court
-- that he no longer stands behind his own
'Guidelines' that are at issue this present appeal.
But the Comptroller has told this Court that he has
not yet decided what he will do, in that regard --
he is keeping his options open, as between
(a) issuing new Guidelines, or (b) simply revoking
the current Guidelines and not replacing them with
any revised version. See Second Supplemental Brief
of Appellant[], pp. 6-8.
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"The Comptroller's new disavowal of his
Guidelines may change the complexion of this case
and may affect how the Court rules. But this Court
should be able to know, before undertaking to rule,
what the Comptroller's real position is: will he
issue new Guidelines, or abandon Guidelines
altogether? At present, the Comptroller has placed
the Court in a state of uncertainty. This Court
should not have to rule in this case without clarity
from the Comptroller as to which choice he will
make."
The Eleventh Circuit Court of Appeals issued its mandate
in Alabama Education Ass'n v. State Superintendent of
Education on April 14, 2014. Some time has now passed since
the filings of the comptroller and the AEA and John described
above and the April 14 issuance by the Eleventh Circuit Court
of Appeals of the mandate anticipated by those filings.
During this time, this Court has not been notified that the
guidelines have been withdrawn, as the parties suggested they
might be. Nor have we been notified of any modification to
the guidelines, as was represented to be "due" and
"impending."
We therefore proceed to address the merits of the appeal
before us. Because the issue upon which we dispose of this
appeal is one that has already been briefed by the parties, we
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do not find a need for any further briefing as has been
offered by the parties.
II. Standard of Review
A preliminary injunction should be issued only when the
party seeking the injunction demonstrates the following four
elements:
"'"(1) that without the injunction the plaintiff
will suffer immediate and irreparable injury; (2)
that the plaintiff has no adequate remedy at law;
(3) that the plaintiff is likely to succeed on the
merits of the case; and (4) that the hardship
imposed upon the defendant by the injunction would
not unreasonably outweigh the benefit to the
plaintiff."'"
Barber v. Cornerstone Cmty. Outreach, Inc., 42 So. 3d 65, 78
(Ala. 2009) (quoting Blount Recycling, LLC v. City of Cullman,
884 So. 2d 850, 853 (Ala. 2003), quoting in turn Blaylock v.
Cary, 709 So. 2d 1128, 1130 (Ala. 1997)). Rulings about the
law imbedded in the decision to issue a preliminary injunction
are reviewed de novo. See State Bd. of Educ. v. Mullins, 31
So. 2d 91, 96 (Ala. 2009).
"'[T]o 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.'"
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Barber, 42 So. 3d at 78 (quoting Holiday Isle, LLC v. Adkins,
12 So. 3d 1173, 1176 (Ala. 2008)).
III. Analysis
A. The "Office of the State Comptroller" as a Defendant
The plaintiffs filed this action against the comptroller
in his official capacity and against "the Office of the State
Comptroller." The comptroller asserts that "[n]o entity known
as 'the Office of the State Comptroller' exists." The
comptroller points to § 41-4-51, Ala. Code 1975, which
provides that "[t]he division of control and accounts shall be
headed by and be under the direction, supervision and control
of an officer who shall be designated the Comptroller. The
Comptroller shall be appointed by the Director of Finance,
with the approval of the Governor."
The AEA notes that "office of the State comptroller" is
mentioned in § 34-25-5, Ala. Code 1975, and that "the Office
of the Comptroller" is listed in § 40-1-16, Ala. Code 1975.
In addition to these statutory references, §§ 17-16-2.1, 32-6-
441, and 41-4-65, Ala. Code 1975, reference "the Comptroller's
office," and § 40-5-3, Ala. Code 1975, mentions "the office
of the Comptroller."
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The aforesaid statutory references appear, in effect, to
serve as references to the State comptroller. Based on our
review of those statutes and, with particular reliance on
§ 41-4-51 as described above, it appears that there is no such
official entity of State government as "the Office of the
State Comptroller." In any event, if such an entity did
exist, the attempt to sue it as such in the present case would
run afoul of the proscriptions of § 14 of the Alabama
Constitution of 1901, immunizing the State and State agencies
from liability. The action before us, therefore, is due to be
dismissed insofar as it purports to state a claim against "the
Office of the Comptroller."
B. Merits of the Appeal of the Preliminary Injunction
As indicated above, a preliminary injunction is
appropriate only in circumstances where, "without the
injunction the [party would] suffer immediate and irreparable
injury," Barber, 42 So. 3d at 78, as a result of the activity
sought to be enjoined. In other words, a party has not
demonstrated that a preliminary injunction is justified if
there is no demonstration that the injunction will prevent the
threatened injury that is alleged. See, e.g., Ex parte B2K
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Sys., LLC, [Ms. 1130742, Sept. 12, 2014] ___ So. 3d ___ (Ala.
2014) (reversing the trial court's entry of a preliminary
injunction intended to protect against the loss of a computer-
software "source code" on the ground that the source code was
no less threatened without the imposition of the preliminary
injunction than with it).
In the present case, the alleged injury with which the
plaintiffs allege they are threatened -- their inability to
receive payments by way of automated payroll deductions -- is
no greater without the requested injunction than with it.
Section 17-17-5(a) explicitly states that "[n]o 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." Even
more specifically, § 17-17-5(b) explicitly states "[n]o 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." More specifically still, § 17-17-5(b)
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goes on to prescribe detailed mechanics by which an
organization requesting to receive payments by way of salary
deductions is to certify certain information and when it is to
certify that information, in order that the appropriate
governmental entity can be assured that a payroll deduction
related to that organization will not conflict with the above-
quoted prohibitions.
Indeed, the lack of the necessity for the guidelines in
order to implement the policy by which the plaintiffs claim to
be threatened is borne out by the fact that, even under the
previous version of § 17-17-5, which was lacking much of the
explicit directives contained in the above-quoted passages
added by the Act, the State was able to adopt and execute a
policy beginning on or about July 1, 2010, by which it ceased
making the types of automated deductions at issue. In its
April 5, 2011, order, the Eleventh Circuit Court of Appeals
stayed that portion of the federal district court's
preliminary injunction that required the State defendants to
honor employees' requests for salary deductions designated for
the AEA that represented contributions to Alabama Voice of
Teachers for Education, a political-action committee
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affiliated with the AEA (known as "A-VOTE"). As we noted in
Davis, 92 So. 3d at 744:
"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.'"
(Emphasis added.)
In other words, as both this Court and the Eleventh
Circuit Court of Appeals acknowledged, the provisions of the
prior version of § 17-17-5 were fully capable of being
executed, and were being executed, by the executive branch of
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State government before the enactment of the 2010 amendments
to § 17-17-5 effected by the Act. A fortiori, the much more
specific provisions of the Act are and would be amenable to
executive implementation without the necessity of the
"guidelines." There is nothing in the record before us to
indicate that, in the absence of the guidelines, the Act would
not be enforced just as its predecessor was.
Like its predecessor, the Act itself explicitly prohibits
payroll deductions for remittance to organizations for use in
"political activities." The Act, however, now provides much
more direction with respect to this prohibition, and it
explicitly establishes specific, statutorily required
mechanisms by which the prohibitions of the Act are to be
implemented. It is the Act that is the source of the alleged
harm the plaintiffs seek to avoid. Enjoining the
implementation of the guidelines will not eliminate that
source.
Yet, in this case, we are asked to address a complaint
and, specifically, a preliminary injunction that focus solely
on the alleged invalidity of the guidelines. The plaintiffs
have not sought, and do not seek here to defend, any order
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barring enforcement of the Act itself. It is critical to
observe, as does the comptroller, that "the identified harm
[is] the loss of dues payment by payroll deduction" and that
this alleged harm is mandated by the Act itself. As the
comptroller further explains, "even if plaintiffs are fully
successful in having the court declare the Guidelines void and
enjoin their enforcement, Plaintiffs will still 'not be
[permitted to] receiv[e] the funds that their members have
sought to have deducted and forwarded to the Plaintiffs.'"4
Indeed, the plaintiffs do not dispute that they would be
disqualified from receiving remittances resulting from payroll
deductions because each engages in at least some activity that
qualifies as "political activity" under the Act. See also
Alabama Educ. Ass'n v. State Superintendent of Educ., 746 F.3d
at 1140 ("Some of AEA and A–VOTE'S conduct indisputably falls
within the Act's definition of political activity.").
"A court will not grant ... an injunction that would be
of no benefit to the person seeking it." 42 Am Jur. 2d
4
As the comptroller also notes, the plaintiffs will not
necessarily fail to receive "the funds that their members have
sought to have deducted and forwarded" but will receive those
funds in a different manner than as a result of automated
payroll deductions.
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Injunctions § 23 (2010). "It is true that a court of equity
may refuse to give any relief when it is apparent that that
which it can give will not be effective or of benefit to the
plaintiff." Virginia Ry. v. System Fed'n No. 40, 300 U.S.
515, 550 (1937). "The rule is stated in 32 C.J. 75, 76
Section 61 that: 'An injunction will be refused ... where for
any reason it can be of no benefit to complainant ....'"
Mitchell Irrigation Dist. v. Whiting, 59 Wyo. 52, 69, 136
P.2d 502, 508 (1943). By the same token, § 41-22-10 of the
same AAPA upon which the plaintiffs rely provides that a court
may issue injunctive relief as to the validity of a purported
rule only "if the court finds that the rule, or its threatened
application, interferes with or impairs or threatens to
interfere with or impair, the legal rights or privileges of
the plaintiff."
In this case, it is not the purported rule that
"interferes with or impairs, or threatens to interfere with or
impair," a right of privilege of the plaintiffs -- it is the
underlying statute itself. In the absence of an identified
harm that will be ameliorated by a requested injunction, there
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is no warrant for the exercise of judicial authority and the
intrusion into the parties' affairs represented thereby.5
IV. Conclusion
As noted, the plaintiffs' action is due to be dismissed
insofar as it purports to name "the Office of the State
Comptroller" as a defendant, and the circuit court is
instructed to dismiss the action in that regard. For the
reasons stated above, the preliminary injunction issued by the
circuit court is reversed, and this caused is remanded for
further proceedings consistent with this opinion.
5
Among other things, the comptroller also seeks reversal
of the circuit court's judgment on the ground that the
guidelines are not a "rule" under Ala. Code 1975, § 41-22-
3(9). Among their specific contentions is the argument that
§ 41-22-3(9)a. specifically excludes from the definition of a
"rule" any "[s]tatements concerning only the internal
management of an agency and not affecting private rights or
procedures available to the public." The comptroller contends
that, even if the plaintiffs qualify as "the public" for
purposes of § 41-22-3(9)a., the guidelines impose no material
"procedure" not already specifically prescribed in the text of
the applicable statutes, themselves, see § 17-17-5 and § 35-1-
4.3 and -4.4, and that the plaintiffs have no "private right"
to payment of dues by State-assisted salary deductions.
Ysursa, 555 U.S. at 359. In light of our reversal of the
preliminary injunction on the ground discussed above, it is
not necessary to address this and other additional arguments
asserted by the comptroller as bases for relief from that
injunction.
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REVERSED AND REMANDED WITH INSTRUCTIONS.
Stuart, Bolin, Parker, Shaw, Wise, and Bryan, JJ.,
concur.
Moore, C.J., concurs specially.
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MOORE, Chief Justice (concurring specially).
I fully concur in the main opinion. I write separately
to comment on that portion of the preliminary injunction
entered by the Montgomery Circuit Court that states that the
State comptroller, Thomas L. White, Jr., "must, in all future
pay periods, honor all employee requests for payroll
deductions pertaining to, or involving," the Alabama Education
Association ("the AEA") and the Alabama State Employees
Association ("the ASEA"). This portion of the order
effectively absolves the plaintiffs from having to obey § 17-
17-5(b)(1), Ala. Code 1975, which states: "No person in the
employment of the State of Alabama ... may 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." Under the
trial court's injunction, the comptroller must honor "all
employee requests for payroll deductions" for the benefit of
the AEA and the ASEA regardless of whether those organizations
use that revenue for political activity.
The complaint seeks relief from enforcement of guidelines
issued by the comptroller on the ground that the guidelines
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were improperly implemented. The complaint does not seek to
enjoin the statute itself. Even though the validity of § 17-
17-5(b)(1) is not at issue in this case, the trial court's
preliminary injunction effectively suspends operation of that
statute as it applies to the AEA and the ASEA and is due to be
reversed.
37