AlaFile E-Notice

01-CV-2019-900747.00

To: MEGHAN ANNE SALVATI

msalvati@sirote.com

NOTICE OF ELECTRONIC FILING

IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA

CITY OF HOMEWOOD, ALABAMA ET AL V. JOHN H. MERRILL ET AL

01-CV-2019-900747.00

The following complaint was FILED on 2/14/2019 1:58:45 PM

Notice Date: 2/14/2019 1:58:45 PM

JACQUELINE ANDERSON SMITH

CIRCUIT COURT CLERK
JEFFERSON COUNTY, ALABAMA
JEFFERSON COUNTY, ALABAMA
716 N. RICHARD ARRINGTON BLVD.
BIRMINGHAM, AL, 35203

205-325-5355
jackie.smith@alacourt.gov
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ELECTRONICALLY FILED
2/14/2019 1:58 PM
01-CV-2019-900747.00
State of Alabama Case Number: CIRCUIT COURT OF
COVER SHEET JEFFERSON COUNTY, ALABAMA
Unified Judicial System
CIRCUIT COURT - CIVIL CASE 01-CV-2019-900747.00
JACQUELINE ANDERSON SMITH, CLERK
(Not For Domestic Relations Cases) Date of Filing: Judge Code:
Form ARCiv-93 Rev. 9/18
02/14/2019

GENERAL INFORMATION
IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA
CITY OF HOMEWOOD, ALABAMA ET AL v. JOHN H. MERRILL ET AL

First Plaintiff: Business Individual First Defendant: Business Individual

Government Other Government Other

NATURE OF SUIT: Select primary cause of action, by checking box (check only one) that best characterizes your action:

TORTS: PERSONAL INJURY OTHER CIVIL FILINGS (cont'd)

WDEA - Wrongful Death MSXX - Birth/Death Certificate Modification/Bond Forfeiture Appeal/
TONG - Negligence: General Enforcement of Agency Subpoena/Petition to Preserve

TOMV - Negligence: Motor Vehicle CVRT - Civil Rights

TOWA - Wantonness COND - Condemnation/Eminent Domain/Right-of-Way
TOPL - Product Liability/AEMLD CTMP - Contempt of Court
TOMM - Malpractice-Medical CONT - Contract/Ejectment/Writ of Seizure
TOLM - Malpractice-Legal TOCN - Conversion
TOOM - Malpractice-Other EQND - Equity Non-Damages Actions/Declaratory Judgment/
TBFM - Fraud/Bad Faith/Misrepresentation Injunction Election Contest/Quiet Title/Sale For Division

TOXX - Other: CVUD - Eviction Appeal/Unlawful Detainer

FORJ - Foreign Judgment
TORTS: PERSONAL INJURY FORF - Fruits of Crime Forfeiture
TOPE - Personal Property MSHC - Habeas Corpus/Extraordinary Writ/Mandamus/Prohibition
TORE - Real Properly PFAB - Protection From Abuse
EPFA - Elder Protection From Abuse
OTHER CIVIL FILINGS
FELA - Railroad/Seaman (FELA)
ABAN - Abandoned Automobile
RPRO - Real Property
ACCT - Account & Nonmortgage
WTEG - Will/Trust/Estate/Guardianship/Conservatorship
APAA - Administrative Agency Appeal
COMP - Workers’ Compensation
ADPA - Administrative Procedure Act
CVXX - Miscellaneous Circuit Civil Case
ANPS - Adults in Need of Protective Services

ORIGIN: F INITIAL FILING A APPEAL FROM O OTHER

DISTRICT COURT

R REMANDED T TRANSFERRED FROM

OTHER CIRCUIT COURT

Note: Checking "Yes" does not constitute a demand for a

HAS JURY TRIAL BEEN DEMANDED? YES NO jury trial. (See Rules 38 and 39, Ala.R.Civ.P, for procedure)

RELIEF REQUESTED: MONETARY AWARD REQUESTED NO MONETARY AWARD REQUESTED

ATTORNEY CODE:
SAL035 2/14/2019 1:58:27 PM /s/ MEGHAN ANNE SALVATI
Date Signature of Attorney/Party filing this form

MEDIATION REQUESTED: YES NO UNDECIDED

Election to Proceed under the Alabama Rules for Expedited Civil Actions: YES NO
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ELECTRONICALLY FILED
2/14/2019 1:58 PM
01-CV-2019-900747.00
CIRCUIT COURT OF
JEFFERSON COUNTY, ALABAMA
JACQUELINE ANDERSON SMITH, CLERK
IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA

CITY OF HOMEWOOD, ALABAMA; )

and JAMES ALAN OWEN, )
Plaintiffs, )
)
v. ) Case No. ______________________
)
JOHN H. MERRILL, in his official )
capacity as Secretary of State of )
Alabama; HON. ALAN L. KING, in his )
official capacity as Probate Judge of )
Jefferson County; and KAY E. IVEY, in )
her official capacity as Governor of the )
State of Alabama. )
)
Defendants. )

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

COME NOW the Plaintiffs City of Homewood, Alabama (“Homewood”) and James Alan

Owen (“Owen”) (and collectively “Plaintiffs”) and hereby file this complaint for declaratory and

injunctive relief as follows:

This is an action seeking declaratory and injunctive relief voiding and invalidating the

November 6, 2018 general election concerning the local constitutional amendment related to

Homewood’s efforts to be exempted from the cap on ad valorem taxes under Article XI, § 217 of

the Constitution of Alabama of 1901. In particular, Homewood seeks to have the election declared

void for failure to adhere to the requirements of the enabling legislation and for failing to use a

uniform ballot at each polling place. Homewood further seeks an order requiring the Defendants

to permit a special election to be conducted on the proposed constitutional amendment.

Parties

1. Plaintiff CITY OF HOMEWOOD, ALABAMA is a municipality located in

Jefferson County, Alabama.

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2. Plaintiff James Alan Owen (“Owen”), is an individual resident of and qualified

elector in Jefferson County, Alabama. Owen has an interest in this matter because he is a qualified

elector in Jefferson County and a resident of the City of Homewood.

3. Defendant JOHN H. MERRILL (“Merrill”) is the Secretary of State of the State of

Alabama and is sued solely in that capacity and in order to provide full relief.

4. Defendant HON. ALAN L. KING (“Judge King”) is the Probate Judge of Jefferson

County, Alabama, and is sued solely in that capacity and in order to provide full relief. Judge King

is also the Chief Elections Officer for Jefferson County.

5. Defendant KAY E. IVEY (“Ivey”) is the Governor of the State of Alabama, and is

sued solely in that capacity and in order to provide full relief.

Factual Background

6. Pursuant to Article XI, § 217 of the Constitution of Alabama of 1901, ad valorem

property taxes are effectively capped at 75 mils ($75.00 per $1000 in value) for all municipalities

in Alabama, except for Huntsville, Mountain Brook and Vestavia Hills which are exempted from

this cap. Section 217 is generally referred to as the “Lid Bill” and was added to the Alabama

Constitution in 1978.

7. The City of Homewood, having reached the applicable cap on property taxes almost

two decades ago, recently sought an exemption to § 217 by way of a local constitutional

amendment that would allow the residents of Homewood to vote by referendum on any future

property tax increases without being subject to the cap. In order to enable such an exemption, a

proposed local constitutional amendment was prepared and introduced in the Alabama Legislature

during the most recent legislative session.

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8. The enabling legislation for the proposed constitutional amendment (HB146)

passed the Alabama House of Representatives unanimously on February 15, 2018 and Act 2018-

166 unanimously passed the Alabama Senate on March 1, 2018.

9. Section 2 of the enabling legislation provided that “[a]n election upon the proposed

amendment shall be held in accordance with Section 284.01 to the Constitution of Alabama of

1901… and the election laws of this state.” Section 3 of the Act provided that “[t]he appropriate

election official shall assign a ballot number for the proposed constitutional amendment on the

election ballot and shall set forth the following description of the substance or subject matter of

the proposed constitutional amendment:

Relating only to the City of Homewood in Jefferson County, proposing an

amendment to the Constitution of Alabama of 1901, to provide that existing limits
on the amount of ad valorem taxes payable on various classes of taxable property
in any one year would not apply

(A true and correct copy of the enabling Act is attached hereto as Exhibit A).

10. On August 24, 2018, Alabama Secretary of State Merrill certified the prescribed

language for the proposed constitutional amendments, including the Homewood local amendment,

to appear on the ballot for the general election to be held on November 6, 2018. There were four

statewide amendments certified, but the Homewood local amendment was the only local

constitutional amendment certified for Jefferson County.

11. Pursuant to § 284.01(d) of the Constitution of Alabama of 1901, notice of the

proposed Homewood local amendment was given by proclamation of the Governor and published

once a week for four successive weeks preceding the November 6, 2018 general election in the

Birmingham News.

12. In accordance with § 284.01 to the Constitution of Alabama of 1901, the proposed

constitutional amendment was to be placed on the general election ballot only in Jefferson County

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and would become law if approved by a majority of the qualified voters in both the City of

Homewood and in the rest of Jefferson County.

13. In order to encourage support for the proposed constitutional amendment, the City

of Homewood and the Homewood City Schools undertook an informational campaign designed

to educate voters about the proposed amendment. Because the proposed constitutional amendment

was the only local amendment on the ballot in Jefferson County and Homewood had been told that

it would appear on the ballot as “Local Amendment 1,” supporters of the Homewood amendment

fashioned their campaign around the phrase “Yes On Local One” or “YOLO!” The Homewood

City Schools created a website named “yolojeffco.com” and allocated up to $280,000.00 to

marshalling support for the local constitutional amendment. Significant time, energy, and

resources were devoted to publicizing the proposed constitutional amendment as “Local

Amendment 1” in Homewood and Jefferson County.

14. In the final days leading up to the November 6, 2018 general election, Homewood

learned for the first time that election officials had apparently made the decision to unilaterally

renumber the proposed constitutional amendment on the official ballots used by voters in

Homewood. Instead of being named “Local Amendment 1,” the proposed amendment was

renumbered and renamed as “Local Amendment 2” even though there was only one local

amendment under consideration in Jefferson County. (True and correct copies of the different

sample ballots are attached hereto as Exhibit B).

15. The decision to assign two different ballot numbers to the proposed constitutional

amendment was an innocent mistake that was motivated by good intentions, but which resulted in

unforeseen adverse consequences. These unforeseen consequences rendered the November 6,

2018 election on the proposed amendment void and invalid.

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16. The decision to renumber the proposed constitutional amendment caused a great

deal of voter confusion on the very eve of the election and seriously undermined or vitiated

Homewood’s efforts to educate voters about the proposed amendment. This confusion was

exacerbated by the fact that there were also four statewide constitutional amendments on the

general election ballot, several of which had engendered significant controversy.

17. In the November 6, 2018 general election, although it was approved by voters in

Homewood, the proposed constitutional amendment narrowly failed to receive the approval of a

majority of the voters in greater Jefferson County. When the votes in Homewood are added to the

votes in the rest of Jefferson County, the amendment lost by only 2565 votes.

Claims for Relief

18. Section 3 of the enabling Act for the Homewood constitutional amendment

provided that “[t]he appropriate election official shall assign a ballot number for the proposed

constitutional amendment on the election ballot …”. (Emphasis added). This language required

that the proposed constitutional amendment be assigned a single, solitary number when it was

placed on the general election ballot. The last-minute renumbering of the proposed amendment

so that it had one ballot number in parts of Jefferson County and another ballot number in other

parts of Jefferson County violated the unambiguous requirements of the enabling Act. “As a

general proposition, when the statute expressly declares how the ballot shall be prepared,

distributed, marked and identified by the officers charged with such duties and providing that

ballots which do not so conform shall not be counted, a failure of substantial compliance with such

mandatory provision invalidates the ballot.” Walker v. Junior, 24 So.2d 431, 432 (Ala. 1945).

Because the election ballots did not comply with the enabling legislation, the results of the election

must be voided.

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19. The decision to assign two different ballot numbers to the proposed constitutional

amendment also violated Alabama law requiring uniformity of ballots. Ballot uniformity has long

been the public policy and law in Alabama. Section 17-6-23, CODE OF ALABAMA, for example,

provides in pertinent part: “There shall be provided at each polling place at each election at which

public officers are voted for, but one form of ballot for all the candidates for public office.”

(Emphasis added here). Because the proposed constitutional amendment was assigned different

ballot numbers depending on the polling place, the ballots were not uniform and the election must

be voided.

20. The decision to assign two different ballot numbers to the proposed constitutional

amendment rendered the November 6, 2018 vote invalid and void.

COUNT ONE: DECLARATORY JUDGMENT

21. Plaintiffs incorporate by reference the allegations in the preceding paragraphs as if

fully set out herein.

22. There exists a real, substantial, and bona fide controversy between the parties

regarding the validity of the November 6, 2018 vote on the proposed constitutional amendment

and the decision to assign two different ballot numbers to the proposed amendment.

23. Pursuant to the Alabama Declaratory Judgment Act, § 6-6-220, et seq., Plaintiffs

request that this Court enter a declaratory judgment finding that: (a) the assignment of two different

ballot numbers to the proposed constitutional amendment was improper and violated Alabama

law; (b) because of the improper assignment of two different ballot numbers to the proposed

constitutional amendment, the November 6, 2018 vote on the proposed amendment is invalid and

void; and (c) because the November 6, 2018 vote on the proposed constitutional amendment is

invalid and void, there should be a special election conducted in order to provide voters with the

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opportunity to consider and vote on the proposed amendment without the improper ballots used in

the November 6, 2018 vote.

COUNT TWO: REQUEST FOR INJUNCTIVE RELIEF

24. Plaintiffs incorporate by reference the allegations in the preceding paragraphs as if

fully set out herein.

25. The decision to assign two different ballot numbers for the proposed constitutional

amendment caused harm and injury to Plaintiffs which can only be remedied by the holding of a

special election in order to give voters the opportunity to consider and vote on the proposed

amendment without the confusion caused by the improper ballots used in the November 6, 2018

vote.

26. Plaintiffs request that this Court enter an order directing the Defendants and other

appropriate election officials to schedule a special election in which voters will be permitted to

consider and vote on the proposed amendment with a single assigned ballot number, after

appropriate notice has been given pursuant to § 284.01 to the Constitution of Alabama of 1901.

27. Plaintiffs request such further, additional, and different relief as this Court thinks

appropriate.

/s/ Barry A. Ragsdale

Barry A. Ragsdale (RAG003)
Meghan A. Salvati (SAL035)

OF COUNSEL:
SIROTE & PERMUTT, P.C.
2311 Highland Avenue South
P.O. Box 55727
Birmingham, AL 35255-5727
Tel.: (205) 930-5100
Fax: (205) 930-5101
bragsdale@sirote.com
msalvati@sirote.com

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SERVE DEFENDANTS BY CERTIFIED MAIL AS FOLLOWS:

John Harold Merrill
Secretary of State
State of Alabama
State Capitol Building – Suite S-105
600 Dexter Avenue
Montgomery, AL 36130

Honorable Alan L. King

Probate Judge
Jefferson County Courthouse
716 North Richard Arrington Jr. Blvd.
Birmingham, AL 35203

Kay E. Ivey
Governor of the State of Alabama
State Capitol Building
600 Dexter Avenue
Montgomery, AL 36130

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Exhibit A
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Exhibit B
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