DOCUMENT 169

E-Filed ELECTRONICALLY FILED

03/21/2018 04:53:36 PM 3/22/2018 12:44 PM
Honorable Julia Jordan Weller 03-CV-2018-000092.00
Clerk of the Court CIRCUIT COURT OF
MONTGOMERY COUNTY, ALABAMA
TIFFANY B. MCCORD, CLERK
No. 1170559

IN THE SUPREME COURT OF ALABAMA

Ed R ichardson and R eginald E ggleston , each individually and in their

OFFICIAL CAPACITIES; AND GORDON STONE,

A ppellants ,

V.

E dwina a . R elf and T islam D. E llis ,

A ppellees .

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

AND BRIEF OF AMICUS CURIAE THE CITY OF MONTGOMERY, ALABAMA
IN SUPPORT OF APPELLANTS ON THE MERITS
AND ON APPELLANTS' EMERGENCY MOTIONS TO EXPEDITE APPEAL AND
TO VACATE ORDER AND DISMISS COMPLAINT

From the Montgomery County Circuit Court

(CV-2018-92)

Robert E. Poundstone IV Marc James Ayers

B radley A rant B oult Cummings LLP B radley A rant B oult Cummings LLP
RSA Dexter Avenue Building One Federal Place
445 Dexter Avenue, Ste. 9075 1819 Fifth Avenue North
Montgomery, Alabama 36104 Birmingham, Alabama 35203
(334) 956-7700 (205) 521-8000
rpoundstone@bradley.com mayers@bradley.com

Attorneys for Amicus Curiae

The City of Montgomery, Alabama

TIME SENSITIVE - EXPEDITED REVIEW REQUESTED

 DOCUMENT 169

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

IN SUPPORT OF APPELLANTS ON THE MERITS AND ON APPELLANTS'
EMERGENCY MOTIONS TO EXPEDITE APPEAL AND TO VACATE ORDER
AND DISMISS COMPLAINT

Amicus curiae The City of Montgomery, Alabama ("The City

of Montgomery" or "Montgomery") respectfully moves for leave

to file the attached brief in support of the direct appeal

and Emergency Motions to Expedite Appeal and to Vacate

submitted by Appellants.

INTEREST OF AMICUS CURIAE

Amicus curiae The City of Montgomery has a direct

interest in the Montgomery Public Schools and, specifically,

in the intervention of the State Superintendent proceeding

with the full authority and discretion vested in him by the

Intervention Act. To highlight only a few of the many reported

problems of the school system, forty out of fifty Montgomery

Public Schools were below the state's proficiency rate of 41%

on the 2015-2016 ACT ASPIRE Assessment. The average ACT score

of Montgomery Public Schools students is at least four points

lower than the average for the State of Alabama. Parents are

pulling their children out of the Montgomery Public Schools

as nearly 800 students left the system this school year, which

also means the school district will incur a proportional loss

of millions of dollars in state funds for the upcoming years.

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The Montgomery Public Schools are in financial disarray

as well. In December, a majority of school board members

selected a budget option that would cut 114 certified

positions and 30 classified positions in addition to $1.3

million in central office cuts. However, the State

Superintendent lawfully exercised his authority under the

Intervention Act to reject that budget and has instead

undertaken efforts to solve the Montgomery Public Schools'

financial crisis by means that would not have such a drastic

impact on teachers and students in the classroom.1 The sale

of the Georgia Washington School and the closing of additional

schools, which has been improperly enjoined by the trial

court2, would generate millions of dollars for the Montgomery

1 It is curious that the Alabama Education Association, by

using its lawyers in this litigation, is standing in the way
of efforts by the State Superintendent to resolve some the
financial issues in a way that would save teachers' jobs.
2 By entering an order to "preserve the status quo" the trial
court has entered a preliminary injunction (unbounded by time
limits) and, therefore, is required to have found that the
Plaintiffs have a likelihood of success on the merits in a
case where they state no claim upon which relief can be
granted and in which the trial court does not even have
jurisdiction. It should be noted this injunction was entered
with no evidence and no injunction hearing, and enjoins
activities not even the subject of the complaint and without
meeting other clear requirements under Rule 65 of the Alabama
Rules of Civil Procedure, and should be summarily vacated.
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Public Schools. The Plaintiffs and the Alabama Education

Association do not have to finally prevail in this litigation

to accomplish their goals. The sale of the Georgia Washington

School and the closing of the other schools that was announced

by the Superintendent prior to the Plaintiffs' filing of this

lawsuit must be implemented quickly to accomplish those

objectives by next school year, which is only 4 and a half

months away. In other words, unless this Court acts to correct

this abusive litigation, the Plaintiffs and AEA can simply,

through their unnecessarily and strategically tardy filing,

run out the clock and prevent the State Superintendent from

implementing his budget and plan of action.

All but three of the 50-plus Montgomery Public Schools

are located inside the Montgomery corporate limits, and the

vast majority of the children enrolled in the system reside

See, e.g., Slamen v. Slamen, [Ms. 1160578, Sept. 22, 2017] __

So. 3d __, 2017 WL 4215198, at *4 n.3 (Ala.) (noting "that a
preliminary injunction must be supported by some type of
evidence which substantiates the pleadings") (internal
quotations omitted); Blount Recycling, LLC v. City of
Cullman, 884 So. 2d 850, 855 (Ala. 2003) (adequate notice and
hearing required before preliminary injunction can issue);
Stephens v. Colley, 160 So. 3d 278, 283 (Ala. 2014) (failure
to note the specific reasons supporting injunctive relief as
required under Ala. R. Civ. P. Rule 65(d)(2) mandates reversal
of preliminary injunction).

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 DOCUMENT 169

within the corporate limits of Montgomery. Montgomery each

year provides millions of dollars of in-kind services to or

for the benefit of the school system, such as police

protection and school security, the use of city-owned and

operated athletic facilities, community centers and stadiums,

the provisions of sanitation services, landscaping and ground

maintenance and other similar services. Critically,

Montgomery contributes millions of dollars for the benefit of

the Montgomery School System through the payment of

approximately $3.5 million per year in debt service on certain

of Montgomery's general obligation, full faith and credit

bonds issued by Montgomery or pursuant to funding agreements

to fund the costs of construction and remodeling of school

buildings of the school system. The total of such debt

presently owed by Montgomery and payable from its general

funds is approximately $56 million, none of which debt is

secured other than by Montgomery's promise to pay.

All of Montgomery's interests3 are at risk and will be

impacted by any outcome in this litigation that restricts the

3 Additionally, it should also be noted that the Montgomery

County Board of Education, pursuant to Ala. Code 1975, § 16­
13-199, can only maintain the public schools within the
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 DOCUMENT 169

powers vested in the Superintendent under the Intervention

Act (including an outcome where the Plaintiffs "win" by simply

running out the clock so the Superintendent cannot complete

the sale of the Georgia Washington School and take other

actions necessary to implement his budget and make changes

for next school year). Allowing Plaintiffs, and their AEA

counsel who are now on their second lawsuit challenging this

intervention, to run out the clock on the implementation of

measures for next school year would nullify the

legislatively-granted authority of the Superintendent and

result in the effective evasion of remedial provisions of the

Intervention Act. It would also impair Montgomery's interest

and investments in the school system and would be contrary to

Alabama law.

The City of Montgomery strongly believes that the circuit

court clearly had no subject matter jurisdiction to enter its

March 5, 2018 preliminary injunction blocking the sale of the

Georgia Washington School (in addition to being procedurally

and substantively invalid as an injunction). However, while

Montgomery municipal limits by agreement of the Montgomery

City Council.

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 DOCUMENT 169

the fundamental jurisdictional defects - which are apparent

from the face of the complaint - were raised before the

circuit court, the circuit court avoided any analysis of its

jurisdiction and instead improperly entered the preliminary

injunction. As Appellants have discussed in their various

emergency filings (in this appeal and in their petitions for

writs of mandamus (Nos. 117-0518 and 1170540) , the very

existence of the Plaintiffs' last-second action threatens the

extremely important sale of the school pursuant to the

Appellant State Superintendent of Education's clear

legislatively-granted discretion - a sale that is the

culmination of many months of negotiations and untold

hundreds of hours of work and effort. As repeatedly stated in

those filings, the jurisdictional defects must be resolved by

Monday, March 26, 2018 or the entire sale will be undermined

through the last-second filing of a clearly-invalid lawsuit.

This would mean that an eventual victory for the Appellants

on the merits would be meaningless, because Appellants would

have to move on to other options for the upcoming school year

- options that would force matters in an entirely different

direction to the great detriment of numerous students and the

financial stability of the school system.

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As it stands now, the State Superintendent and two school

systems are being held hostage by the trial court's

injunction. The State Superintendent cannot exercise his

authority and discretion over the Montgomery Schools to sell

the Georgia Washington School, close other schools, work

towards student transfers, work on busing routes, hold public

meetings regarding closures, make teacher assignments for

next year, or work on the budget for next school year. The

Pike Road school system is in limbo over where it will educate

students and whether it needs to incur the substantial expense

of securing portable classrooms. Accordingly, The City of

Montgomery respectfully requests that this Court grant leave

to appear as amicus curiae and file the attached brief.

_____/s/ Marc James Ayers_____________

One of the Attorneys for Amicus Curiae
The City of Montgomery

OF COUNSEL
Marc James Ayers
B radley A rant Boult Cummings LLP
One Federal Place
1819 Fifth Avenue North
Birmingham, AL 35203-2119
(205) 521-8000
(205) 521-8800 (fax)
mayers@bradley.com

Robert E. Poundstone IV
B radley A rant Boult Cummings LLP
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 DOCUMENT 169

RSA Dexter Avenue Building

445 Dexter Avenue, Ste. 9075
Montgomery, Alabama 36104
(334) 956-7700
(334) 956-7701 (fax)
rpoundstone@bradley.com

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 DOCUMENT 169

TABLE OF CONTENTS

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT

OF APPELLANTS ON THE MERITS AND ON APPELLANTS'
EMERGENCY MOTIONS TO EXPEDITE APPEAL AND TO VACATE
ORDER AND DISMISS COMPLAINT............................. i

INTEREST OF AMICUS CURIAE .................................. i

TABLE OF AUTHORITIES ........................................ x

BRIEF OF AMICUS C U R I A E ...................................... 1

ARGUMENT ..................................................... 1

I. This Court Clearly Has the Authority to Vacate the

Injunction and Dismiss this Action for Lack of
Subject Matter Jurisdiction............................. 1

II. If the Sale of Georgia Washington School Is

Allowed to be Undermined by the Existence of this
Frivolous Action, It Would Be to the Severe
Detriment of the City of Montgomery and its
Residents and School Children...........................3

C O N C L U S I O N ................................................... 7

CERTIFICATE OF SERVICE ...................................... 8

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 DOCUMENT 169

TABLE OF AUTHORITIES

Cases

Alabama House of Representatives Judiciary Comm.

v. Office of the Governor of Ala.,
213 So. 3d 579 (Ala. 2017) ............................... 3

Blount Recycling, LLC v. City of Cullman,

884 So. 2d 850 (Ala. 2003) ............................. iii

Ex parte Burch,
236 Ala. 662, 184 So. 694 (1938) ......................... 2

Ex parte James,
836 So. 2d 813 (Ala. 2002) (Houston, J.,
concurring specially) ..................................... 2

Marsh v. Pettway,
109 So. 3d 1118 (Ala. 2013) .............................. 3

Slamen v. Slamen,
[Ms. 1160578, Sept. 22, 2017] __ So. 3d __, 2017
WL 4215198 (Ala.) ........................................iii

Stephens v. Colley,
160 So. 3d 278 (Ala. 2014) ............................. iii

Constitutional Provisions

Ala. Const. 1901, Art. VI, § 140 ........................... 1

Statutes

Ala. Code 1975, § 12-2-7 (3) 1

Ala. Code 1975, § 16-13-199 ................................ iv

Rules

Ala. R. Civ. P. 65 .......................................... ii

Ala. R. Civ. P. 65(d)(2) ................................ iii

x
 DOCUMENT 169

BRIEF OF AMICUS CURIAE

ARGUMENT

I. This Court Clearly Has the Authority to Vacate the

Injunction and Dismiss this Action for Lack of Subject
Matter Jurisdiction.

Amicus curiae The City of Montgomery respectfully

requests that this Court grant Appellants' Emergency Motion

to Vacate the injunction and dismiss this action, over which

the circuit court clearly lacked subject matter jurisdiction

due to a patent lack of plaintiff standing and on

nonjusticiability grounds. To the extent that there is any

doubt about whether this Court has the inherent and

constitutionally-based authority to dismiss this action under

emergency circumstances such as this - and to avoid abuse of

the judiciary through strategically-timed lawsuits - let that

doubt be set aside. The Alabama Constitution expressly

provides that this Court "shall have power to issue writs of

injunction, habeas corpus, quo warranto, and such other

remedial and original writs as may be necessary to give it a

general superintendence and control of inferior

jurisdictions." See Ala. Const. 1901, Art. VI, § 140. This

authority is recognized and reflected in the Alabama Code.

See Ala. Code 1975, § 12-2-7 (3) (noting the Supreme Court's

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 DOCUMENT 169

authority to "issue writs of injunction, habeas corpus, and

such other remedial and original writs as are necessary to

give to it a general superintendence and control of courts of

inferior jurisdiction").

Indeed, "[t]his Court's supervisory authority has been

constitutionally recognized throughout the history of this

State." Ex parte James, 836 So. 2d 813, 834 n.22 (Ala. 2002)

(Houston, J., concurring specially) . And it has been long-

recognized that this Court has a "clear duty to exercise that

power whenever it is made to appear that an inferior court is

guilty of usurpation or abuse of jurisdiction." Ex parte

Burch, 236 Ala. 662, 666, 184 So. 694, 698 (1938) . As the

Appellants have strenuously argued, that is certainly the

case here. This frivolous case appears to have been clearly

filed at the last second to undermine the sale of Georgia

Washington School before full appellate remedies could be

sought in the normal course. But, given the clear lack of

standing and the justiciability issues raised by the

Appellants, there is simply no jurisdictional basis for this

action - but there is equally no advantage to a later

appellate victory, as the sale will have been scuttled and

the State Superintendent will not have been able to exercise

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 DOCUMENT 169

the authority and discretion vested in him by the Intervention

Act. To be clear, the Plaintiffs do not need to ultimately

win this lawsuit, all they need to do is run out the clock so

the Superintendent cannot implement his budget, make

necessary changes and take necessary actions in time to be

implemented for the upcoming school year. The circuit court's

jurisdiction is being abused in this way, which calls for the

use of this Court's supervisory authority in the manner used

in similar emergency circumstances the past. See, e.g., Marsh

v. Pettway, 109 So. 3d 1118 (Ala. 2013) (Ms. 1120658; March

13, 2013 Order vacating temporary restraining order and

dismissing action upon emergency motion based on clear lack

of subject matter jurisdiction) ; Alabama House of

Representatives Judiciary Comm. v. Office of the Governor of

A l a . , 213 So. 3d 579 (Ala. 2017) (No. 1160579; Order issued

on Saturday, April 8, 2017 lifting Judge Griffin's TRO ex

mero motu).

II. If the Sale of Georgia Washington School Is Allowed to

be Undermined by the Existence of this Frivolous Action,
It Would Be to the Severe Detriment of the City of
Montgomery and its Residents and School Children.

To highlight only a few of the many reported problems of

the school system, forty out of fifty Montgomery Public

Schools were below the state's proficiency rate of 41% on the

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 DOCUMENT 169

2015-2016 ACT ASPIRE Assessment. The average ACT score of

Montgomery Public Schools students is at least four points

lower than the average for the State of Alabama. Parents are

pulling their children out of the Montgomery Public Schools

as nearly 800 students left the system this school year, which

also means the school district will incur a proportional loss

of millions of dollars in state funds for the upcoming years.

There is no question that the Montgomery Public Schools

have long been failing to properly serve and educate students.

All but three of the 50-plus Montgomery Public Schools are

located inside the Montgomery corporate limits, and the vast

majority of the children enrolled in the system reside within

the corporate limits of Montgomery. Montgomery each year

provides millions of dollars of in-kind services to or for

the benefit of the school system, such as police protection

and school security, the use of city-owned and operated

athletic facilities, community centers and stadiums, the

provisions of sanitation services, landscaping and ground

maintenance and other similar services. Critically,

Montgomery contributes millions of dollars for the benefit of

the Montgomery School System through the payment of

approximately $3.5 million per year in debt service on certain

4
 DOCUMENT 169

of Montgomery's general obligation, full faith and credit

bonds issued by Montgomery or pursuant to funding agreements

to fund the costs of construction and remodeling of school

buildings of the school system. The total of such debt

presently owed by Montgomery and payable from its general

funds is approximately $56 million, none of which debt is

secured other than by Montgomery's promise to pay.

Despite Montgomery's financial assistance to and

investment in the Montgomery Schools, the system is in

financial peril. In December, a majority of school board

members selected a budget option that would cut 114 certified

positions and 30 classified positions in addition to $1.3

million in central office cuts. However, the State

Superintendent lawfully exercised his authority under the

Intervention Act to reject that budget and has instead

undertaken efforts to solve the Montgomery Public Schools'

financial crisis by means that would not have such a drastic

impact on teachers and students, the vast majority of which

are Montgomery residents, in the classroom. The sale of the

Georgia Washington School and the closing of additional

schools, which has been improperly enjoined by the trial

court, would generate millions of dollars for the Montgomery

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 DOCUMENT 169

Public Schools, without requiring the drastic number of

teacher layoffs proposed by the school board.

Simply put, the Superintendent's planned actions,

including the sale of Georgia Washington School and the

closure of other schools, will help alleviate some of the

school system's significant financial burdens in a way that

minimizes the impact on classroom instruction as much as

possible. The Superintendent's plan of action is not only

within the discretion and authority clearly vested in him by

the Intervention Act, but it is squarely in the best interest

of the children in the system and the residents of Montgomery,

and will help protect the significant investments Montgomery

has and continues to make in the schools. Accordingly,

Montgomery urges this Court to put an end to the effort of

the Plaintiffs and the AEA to use this frivolous lawsuit as

a vehicle to block the Superintendent from performing his

statutorily proscribed duties and to "run out the clock" on

the Superintendent's ability to implement his planned actions

and budget for the upcoming school year.

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CONCLUSION

Based on the above, amicus curiae The City of Montgomery

requests that this Court grant the Appellants' Emergency

Motion to Vacate and dismiss this action as being supported

by no proper jurisdiction.

Respectfully submitted,

/s/ Marc James Ayers_______

One of the Attorneys for Amicus Curiae
The City of Montgomery, Alabama

OF COUNSEL
Marc James Ayers
B radley A rant Boult Cummings LLP
One Federal Place
1819 Fifth Avenue North
Birmingham, AL 35203-2119
(205) 521-8000
(205) 521-8800 (fax)
mayers@bradley.com

Robert E. Poundstone IV
B radley A rant Boult Cummings LLP
RSA Dexter Avenue Building
445 Dexter Avenue, Ste. 9075
Montgomery, Alabama 36104
(334) 956-7700
(334) 956-7701 (fax)
rpoundstone@bradley.com

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 DOCUMENT 169

CERTIFICATE OF SERVICE

I hereby certify I have this the 21st day of March, 2018,

served a copy of the above and foregoing document by United
States Mail and/or electronic mail on the following:

Carl Johnson Theron Stokes

Whit Colvin Clint Daughtrey
B ishop, Colvin , J ohnson & K ent , LLC A labama Education A ssociation
1910 First Avenue North P.O. Box 4177
Birmingham, AL 35203 Montgomery, AL 36106
(205) 251-2881 therons@alaedu.org
carljohnson@bishopcolvin.com clintd@alaedu.org
whitcolvin@bishopcolvin.com
Fred F. Bell, Sr.
Juliana T. Dean 1015 South McDonough Street
A labama State D epartment of E ducation Montgomery, AL 36104
50 North Ripley Street ffbell@netzero.com
Montgomery, AL 36130
(334) 242-1899 Victoria D. Relf
jdean@alsde.edu The R elf Law F irm , LLC
60 Commerce Street, Suite
James R. Seale 325
H ill , H ill , Carter , Franco & Black , Montgomery, AL 36104
P.C. victoria@relf-law.com
P.O. Box 116
Montgomery, AL 36101 James E. Wilson, Jr.
(334) 386-4355 P.O. Box 6237
jrs@hillhillcarter.com Montgomery, AL 36106
atywilson@netzero.com
J. Doyle Fuller
Fuller & Copeland Monica L. Arrington
2851 Zelda Road A rrington & A rrington
Montgomery, AL 36106 2501 Bell Road
jdf@fullercopeland.com Montgomery, AL 36117
arringtonmon@aol.com

s/ Marc James Ayers

of counsel