ELECTRONICALLY FILED 3/18/2013 5:53 PM 03-CV-2013-900471.00 CIRCUIT COURT OF MONTGOMERY COUNTY, TIFFANY B. MCCORD, CLERK IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA

LYNN PETTWAY, * * Plaintiff, * v. * CV- 2013-______* DEL MARSH, CHAD FINCHER, * GERALD DIAL and JAY LOVE, * * Defendants. * *

COMPLAINT

COMES NOW the Plaintiff, Lynn Pettway, and for his Complaint states as follows:

1. This is an action for declaratory and injunctive relief under the Alabama Open

Meetings Act, Title 36, Chapter 25A, Ala. Code 1975 regarding the "Alabama Accountability Act,"

House Bill 84 (hereinafter "HB84") from the 2013 Regular Session of the , now

Act 2013-64, signed by Governor Bentley on March 14, 2013. This is also an action for a declaratory judgment pursuant to §6-6-222, Ala. Code 1975.

2. The Alabama Open Meetings Act is an enactment of the Legislature pursuant to

Section 282, Ala. Const. 1901, to give effect to Section 57, Ala. Const. 1901 (requiring open meetings of the Legislature) and Section 53, Ala. Const. 1901 (giving the Legislature authority to enforce obedience to its rules of procedure). The Legislature created a judicial remedy for violations of this Act and bestowed jurisdiction over such violations, including violations by the Legislature itself, to this Court pursuant to §36-25A-9, Ala. Code 1975.

3. Because the adoption of the bill designated HB84 violated multiple provisions of the

Open Meetings Act, Plaintiff has filed this action within 21 days of those violations, Defendants have acted intentionally and not as the result of mistake, inadvertence, or excusable neglect, and no third party has taken action or changed his or her position in good-faith reliance on HB84 having been lawfully adopted, this Court has jurisdiction under §36-25A-9(f) to invalidate the adoption of

HB84, and thus the enactment of Act 2013-64.

4. Plaintiff Lynn Pettway is an adult resident of Montgomery County Alabama and an

Alabama taxpayer and elector.

5. Defendant Del Marsh (hereinafter "Marsh") is an adult resident of Calhoun County and is a member of the Alabama State Senate.

6. Defendant Chad Fincher (hereinafter "Fincher") is an adult resident of Mobile County and is a member of the Alabama State House of Representatives.

7. Defendant Gerald Dial (hereinafter "Dial") is an adult resident of Clay County and is a member of the Alabama State Senate.

8. Defendant Jay Love is an adult resident of Montgomery County and is a member of the Alabama House of Representatives.

Facts

9. Defendant Fincher sponsored HB84 which had its first reading on the opening day of the 2013 Regular Legislative Session, February 5, 2013.

10. HB84 was assigned to the House Education Policy Committee, which amended the bill and gave it a favorable report on the following day, February 6, 2013.

11. HB84 was amended again on the floor of the House of Representatives and was adopted on February 14, 2013.

12. HB84 had its first reading in the Senate on February 19, 2013, and was assigned to the Senate Education Committee, which gave it a favorable report on February 20, 2013.

2 13. HB84 was amended on the floor of the Senate on third reading on February 28, 2013.

The amendment was introduced by the Senate sponsor of the legislation, Sen. Bill Holtzclaw. The amendment inserted six new lines of text and deleted 16 others, but left the bill at an approximate length of nine pages. The amendment was adopted by a unanimous vote of 32-0.

14. HB84, as amended, was passed by the Senate with a vote of 26 yeas and 7 nays at approximately 12:30 p.m.

15. HB84 was immediately transmitted to the House of Representatives, which voted at approximately 1:15 p.m. to non-concur in the Senate amendment and send it to a conference committee. Defendant Fincher and Defendant Love were appointed to that committee.

Representative was the minority appointee to the conference committee in accordance with Rule 21 of the Joint Rules of the Alabama Legislature (hereinafter "Rule 21").

16. The acceded to the wishes of the House and appointed as its conferees on HB84 Defendant Marsh, Defendant Dial, and Senator Quinton Ross as the minority appointee at approximately 2:00 p.m.

17. Upon the appointment of the Senate conferees, it was announced that the conference committee for HB84 would meet at 3:15 p.m. in Room 727 of the Alabama State House, in compliance with the one-hour notice requirement in Rule 21.

18. At that hour, the conference committee convened, but recessed almost immediately thereafter, announcing a return time of 4:15 p.m.

19. The minority representatives were present at the appointed hour. Interested citizens and members of the media were also present. Defendants Marsh, Fincher, Dial, and Love did not appear until approximately 5:00 p.m., when they began entering the room.

3 20. Upon the resumption of the conference committee meeting, a new bill which was referred to as a substitute version of HB84 was distributed. This version was 28 pages long, as opposed to the 9-page version that was under discussion previously. The name of the proposed act had changed and multiple new provisions had been added to the bill.

21. The conference committee adopted this new bill after limited discussion, with

Defendants Marsh, Fincher, Dial, and Love voting in favor, and the minority members voting against.

22. The version of the bill adopted by the conference committee, according to the report signed by the majority members of the committee, bore the Legislative Reference Service number

149517-8 (hereinafter "version 8").

23. The version of the bill distributed to the members of the House and Senate on the floor was 149517-7 (hereinafter "version 7"). This version contained additional language not contained in version 8.

24. HB84 was then adopted by the House of Representatives shortly thereafter, after a petition to close debate was invoked. The Clerk of the House enrolled version 8 and transmitted it to the Senate.

25. Individual members of the Senate received version 7 of the bill and debated it. The

Senate adopted HB84 (version 8) at approximately 7:00 p.m.

26. Governor Bentley signed HB84 on March 14, 2013, and the Secretary of State designated the bill as Act 2013-64.

4 Count I

Unannounced Private Meeting of a Quorum of the Conference Committee

27. Plaintiff adopts the foregoing paragraphs as part of this Count.

28. Upon information and belief, Defendants Marsh, Fincher, Dial, and Love met amongst themselves to discuss HB84 during the above-referenced recess in the public conference committee meeting.

29. Upon information and belief, Defendants met as a quorum of the conference committee and discussed, deliberated, and/or otherwise considered the issues pending before the conference committee in the version of HB84 as it was when the committee convened and the additional provisions that were added immediately thereafter. Defendants left the conference committee meeting discussing a 9-page bill and returned less than two hours later and approved a new bill that ran 28 pages, with a different title and different provisions, which each appeared familiar with, and which each voted to approve with limited discussion.

30. The duly-appointed conference committee on HB84 was a "governmental body," as a committee of a legislative body, pursuant to §36-25A-2(4), Ala. Code 1975.

31. Defendants Marsh, Fincher, Dial, and Love made up a quorum of the committee, as defined by §36-25A-2(12) Ala. Code 1975; thus their gathering, whether or not it was prearranged, regardless of location or the presence of others, during the recess of the HB84 conference committee

, was itself a "meeting" pursuant to §36-25A-2(6)a.3., Ala. Code 1975, because they met to deliberate the new, 28-page version, of HB84, and/or to deliberate what the conference committee would report.

5 32. Section 36-25A-1(a), Ala. Code 1975, provides, in part, that "It is the policy of this state that the deliberative process of governmental bodies shall be open to the public during meetings as defined in Section 36-25A-2(6). Except for executive sessions permitted in Section 36-25A-7(a) or as otherwise expressly provided by other federal or state statutes, all meetings of a governmental body shall be open to the public and no meetings of a governmental body may be held without providing notice pursuant to the requirements of Section 36-25A-3."

33. Defendants Marsh, Fincher, Dial, and Love did not give any notice of their meeting and their meeting was not open to the minority members of the committee or to the public.

34. The actions of defendants Marsh, Fincher, Dial, and Love in conducting a prohibited secret meeting violated §36-25A-1, which is enforceable through §36-25A-9(a), Ala. Code 1975.

35. By not giving a one-hour notice of their meeting, Defendants Marsh, Fincher, Dial, and Love violated Rule 21. The failure to give notice constitutes a violation of §36-25A-5(a), which provides that "unless otherwise provided by law, meetings shall be conducted pursuant to the governing body's adopted rules of parliamentary procedure not in conflict with laws applicable to the governmental body." This violation is likewise enforceable through §36-25A-9(a), Ala. Code

1975.

36. Because there was only one meeting of the conference committee, and an illegal secret meeting took place during a supposed recess therein, but where a quorum of the same committee continued to meet and deliberate, the subsequent open session and vote on the conference committee report thereafter do not qualify as a meeting "conducted in a manner consistent with this chapter" for purposes of the safe harbor provision of §36-25A-9(f), Ala. Code 1975.

6 Count II

Illegal Executive Session

37. Plaintiff adopts all the foregoing paragraphs as part of this Count.

38. By recessing the meeting of the conference committee for the purpose of meeting in secret to deliberate HB84, Defendants Marsh, Fincher, Dial, and Love, as a quorum of the conference committee, conducted an "executive session" of the conference committee, as that term is defined in §36-25A-2(2), during the supposed recess.

39. Defendants Marsh, Fincher, Dial, and Love did not announce during the open, public portion of the conference committee meeting prior to the supposed recess that they intended to go into an executive session, did not vote to conduct an executive session, and did not publicly state the purpose of the executive session, in violation of §36-25A-7(b), which is enforceable through

§36-25A-9(a), Ala. Code 1975.

40. Because there was only one meeting of the conference committee, and an illegal executive session took place therein, the subsequent open session and vote on the conference committee report thereafter do not qualify as a meeting "conducted in a manner consistent with this chapter" for purposes of the safe harbor provision of §36-25A-9(f), Ala. Code 1975.

Count III

Violation of Rule 21 Requirements Governing Appropriation Bills

41. Plaintiff adopts all the foregoing paragraphs as part of this Count.

42. The new bill offered as HB84 after the recess in the conference committee meeting inserted a new Section 8, which creates a tuition tax credit for parents in certain school zones who elect to send their children to private schools.

7 43. Section 8(a)(2) provides in part: "Income tax credits authorized by this section shall be paid out of sales tax collections made to the Education Trust Fund, and set aside by the

Comptroller in the Failing School Tax Credit Account created in subsection (c), in the same manner as refunds of income tax otherwise provided by law, and there is hereby appropriated therefrom, for such purpose, so much as may be necessary to annually pay the income tax credits provided by this section." (emphasis added).

44. Another major addition to the pre-recess version of HB84 is Section 9, which provides tax credits for individuals and businesses who donate to a newly-created entity called a

"scholarship granting organization," which is a charitable organization that provides scholarships to students to attend private schools.

45. Section 9(a)(3) provides up to $25,000,000 per year in tax credits to be paid to individuals and businesses who donate to such groups.

46. Because public funds have been appropriated in this bill, the new bill designated

HB84 is an appropriation bill.

47. The fourth paragraph of Rule 21 reads as follows: "A Committee on Conference on an appropriation bill shall only address differences in monetary amounts or language differences between the House-passed and Senate-passed versions of the pending legislation. The Committee on Conference shall not introduce a new appropriation item, earmark funds for any item that did not appear in either the House-passed or Senate-passed version, or propose new language that did not appear in either the House-passed or Senate-passed version. The conference committee shall not increase the appropriation to any entity above the higher amount passed by either the House or Senate. The provisions contained in this paragraph may be suspended as to particular

8 items of appropriation or language by a majority recorded vote of the House membership and by a majority recorded vote of the Senate membership." (emphasis added).

48. As alleged above, the new bill designated HB84 was 18 pages longer than the version of HB84 passed by either the House or the Senate. Sections 8 and 9 of the adopted version of HB84 were not contained in either version of the bill passed before the conference committee meeting.

49. Rule 21 requires that legislators be notified that new language has been added to an appropriation bill in conference committee that was not present in either the House- or Senate-passed versions of the bill, and that a separate vote be taken in each house to suspend Rule 21 and adopt the committee report with such changes.

50. Speaker Mike Hubbard, who was presiding over the House at the time of the adoption of the new bill designated HB84, did not conduct a separate vote to suspend Rule 21.

51. Lt. Governor Kay Ivey, who was presiding over the Senate at the time of the adoption of the new bill designated HB84, did not conduct a separate vote to suspend Rule 21.

52. Therefore, there was not a recorded vote to suspend Rule 21 in either the House or the Senate on the new bill designated HB84 as required by the rule.

53. Defendants knew or should have known that by inserting multiple appropriations into

HB84 it became an appropriation bill, as defined by that rule, meaning that their action was in violation of Rule 21. Such violation could be excused by a separate, recorded vote to suspend the rule, but no such vote was taken.

54. Upon information and belief, Defendants did not want to acknowledge the presence of either appropriation, especially the unlimited appropriation, inserted into HB84 after it reached the floors of their respective houses. Thus, they intentionally did not make a motion to suspend Rule

9 21 so that a wrongly-adopted conference report would be adopted by their respective legislative chambers.

55. This violation of the Legislature's adopted rules of order is another violation of

§36-25A-5(a), Ala. Code 1975, enforceable through §36-25A-9(a), Ala. Code 1975.

56. Because the same violation occurred during both the meeting of the House of

Representatives and the meeting of the Senate subsequent to the illegal conference committee meeting alleged in Counts 1 and 2 of this complaint, Defendants cannot claim that those meetings were "conducted in a manner consistent with this chapter" for purposes of availing themselves of the safe harbor provision of §36-25A-9(f), Ala. Code 1975.

Prayer for Relief

WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully requests that the following relief be granted:

1. Set this matter for preliminary hearing as contemplated pursuant to the provisions of

§36-25A-9, Ala. Code 1975, within ten (10) days of the date of the filing of Defendants' initial response, or within seventeen (17) days after the filing of this Complaint if Defendants do not file a response.

2. After the completion of such preliminary hearing, Plaintiff requests that this

Honorable Court issue a declaratory judgment declaring:

a. That the actions of Defendants Marsh, Fincher, Dial, and Love, in meeting

without notice during a purported recess of the conference committee on HB84,

violated the Open Meetings Act;

10 b. That the actions of Defendants Marsh, Fincher, Dial, and Love, in meeting

in secret during a purported recess of the conference committee on HB84, violated

the Open Meetings Act; and

c. That the actions of Defendants Marsh, Fincher, Dial, and Love, in recessing

a meeting of a governmental body to discuss matters before the body in private

constituted an illegal executive session of the conference committee on HB84, thus

violating the Open Meetings Act; and

d. That the actions of Defendants Marsh, Fincher, Dial, and Love in not calling

for a vote in their respective houses pursuant to Rule 21, to suspend the rule due to

the conference committee changes to an appropriation bill, violated the rule, and,

therefore, the Open Meetings Act.

e. That the failure of the Alabama House of Representative and the Alabama

Senate to suspend Rule 21 prior to adopting HB84 was a violation of Rule 21, and,

therefore, the Open Meetings Act.

3. Enter an order pursuant to §36-25A-9(f) that Act 2013-64 is invalidated, null, void, and of no effect.

4. Include in the final order pursuant to the Open Meetings Act those sanctions to which

Plaintiff would be entitled pursuant to §36-25A-9(g), Ala. Code 1975.

5. Enter an Order requiring that all costs incurred in this case be taxed against

Defendants.

6. Enter an order awarding reasonable attorneys' fees to Plaintiff.

7. Plaintiff further prays that he be awarded any other equitable or further relief and any

11 other and further orders and judgments be entered as to which he may be entitled under the facts as alleged above.

RESPECTFULLY SUBMITTED this 18th day of March, 2013.

Attorneys for the Plaintiff:

/s/ James H. Anderson JAMES H. ANDERSON (AND021) WILLIAM F. PATTY (PAT038) JACKSON, ANDERSON & PATTY, P.C. 250 Commerce Street, Suite 100 Montgomery, Alabama 36104 Phone: (334) 834-5311 / Fax: (334) 834-5311 [email protected]; [email protected]

ROBERT SEGALL (ASB-7354-E68R) COPELAND, FRANCO, SCREWS, & GILL, P.A. 444 South Perry Street Montgomery, AL 36104 (334)-834-1180 [email protected]

EDWARD STILL (STI009) EDWARD STILL LAW FIRM, LLC 130 Wildwood Parkway Ste. 108-304 Birmingham AL 35209 205-320-2882/ [email protected]

THERON STOKES (STO012) CLINT DAUGHTREY(ASB-3021-654C) ALABAMA EDUCATION ASSOCIATION P.O. Box 4177 422 Dexter Avenue Montgomery, AL 36103 (334) 834-9790 / 334-834-7034 fax [email protected]; [email protected]

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DEFENDANTS TO BE SERVED VIA PRIVATE PROCESS SERVER AS FOLLOWS:

Senator Del Marsh 546 Hillyer High Road Anniston, Alabama 36207

Representative Chad Fincher 4000 Wulff Road East Semmes, AL. 36575

Senator Gerald Dial Box 248 Lineville, AL 36266

Representative Jay Love 5611 Woodside Circle Montgomery, Al. 36117

ALSO SERVE:

Hon. Luther Strange OFFICE OF ATTORNEY GENERAL 501 Washington Avenue Montgomery, Alabama 36130

/s/ James H. Anderson OF COUNSEL

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