ELECTRONICALLY FILED 3/18/2013 5:53 PM 03-CV-2013-900471.00 CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA 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 Alabama Legislature, 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 Laura Hall 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 Alabama Senate 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.