Little v. Strange

796 F.Supp.2d 1314

Benjamin LITTLE, Plaintiff,

v.Luther STRANGE, in his official capacity as Attorney General for the State of Alabama, Defendant.

Case No. 2:11–CV–107–WKW.

United States District Court, M.D. Alabama, Northern Division.

June 21, 2011.

John W. Borkowski, Hogan Lovells U.S. LLP, South Bend, IN, Shardul Desai, Hogan Lovells, Washington, DC, William Eugene Rutledge, Sr., Gregory Farzan Yaghmai, Rutledge & Yaghmai, Birmingham, AL, for Plaintiff.

John Cowles Neiman, Jr., Office of the Attorney General, James William Davis, Margaret Lindsey Fleming, State of Alabama, Office of the Attorney General, Montgomery, AL, for Defendant.

Before TJOFLAT, Circuit Judge, and FULLER and WATKINS, District Judges.

MEMORANDUM OPINION

PER CURIAM:

I. INTRODUCTION

Alabama Act No. 95–648, codified as §§ 12–24–1 and 12–24–2 of the Alabama Code (“the Alabama Act”), requires the filing of disclosure statements concerning judicial campaign contributions and the recusal of state justices or judges who receive substantial campaign contributions from a litigant or other described individual. The Alabama Act became effective on January 1, 1996, but it has not been enforced, not even once, during its more than fifteen years of existence.

Notwithstanding the Alabama Act's undisputed dormancy, Plaintiff Benjamin Little (“Plaintiff”) brings this action pursuant to § 5 of the Voting Rights Act (“VRA”), 42 U.S.C. § 1973c, against Luther Strange, the Attorney General for the state of Alabama, in his official capacity (“Defendant”), claiming that the Alabama Act requires preclearance. Defendant has primary responsibility in Alabama for submitting to the United States Attorney General or to a three judge federal district court in Washington, D.C., all new laws that require § 5 preclearance. Plaintiff contends that Defendant has abdicated that responsibility because the Alabama Act brought about a change in a voting standard, practice or procedure subject to preclearance under § 5. He seeks a declaratory judgment that § 5 of the VRA requires preclearance of the Alabama Act and a permanent injunction to prevent Defendant from enforcing the Alabama Act without preclearance. A three judge district court has been convened, pursuant to 28 U.S.C. § 2284 and 42 U.S.C. § 1973c, to determine the issues.

Before the court is Defendant's renewed motion to dismiss, filed pursuant to Rule 12 of the Federal Rules of Civil Procedure. (Doc. # 39.) Defendant moves for dismissal of the complaint on standing and ripeness grounds or, alternatively, for failure to state a claim for which relief can be granted. Plaintiff filed an opposition (Doc. # 44), to which Defendant replied (Doc. # 46). We conclude that the jurisdictional issues of standing and ripeness are dispositive and preclude a ruling on the merits. For the reasons to follow, the motion is due to be granted for lack of subject matter jurisdiction.

II. JURISDICTION

Because the Complaint alleges claims under § 5 of the VRA, subject matter jurisdiction is properly invoked pursuant to 28 U.S.C. §§ 1331, 1343(4), 2201 and 2202 and 42 U.S.C. § 1971(d). This action was transferred to this court from the District Court for the District of Columbia in which it had originally been filed, in accordance with 28 U.S.C. § 1406(a). Personal jurisdiction is not contested.

III. STANDARD OF REVIEW

Defendant invokes Rule 12 of the Federal Rules of Civil Procedure as the basis for his renewed motion to dismiss, but does not delineate under which subsection he is proceeding. Because ripeness and standing pertain to a federal court's subject matter jurisdiction, they will be analyzed under Rule 12(b)(1). Fla. Ass'n of Rehab. Facilities, Inc. v. Fla. Dep't of Health & Rehab. Servs., 225 F.3d 1208, 1227 n. 14 (11th Cir.2000).

A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction asserts either a facial or factual challenge to the complaint. McElmurray v. Consol. Gov't of Augusta–Richmond Cnty., 501 F.3d 1244, 1251 (11th Cir.2007) (citing Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.1981) ¹); accord Lawrence v. Dunbar, 919 F.2d 1525, 1528–29 (11th Cir.1990). A factual attack challenges “the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered.” Lawrence, 919 F.2d at 1529 (citation and internal quotation marks omitted). A facial attack, on the other hand, challenges the complaint on its face and “require[s] the court merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction.” McElmurray, 501 F.3d at 1251 (quoting Lawrence, 919 F.2d at 1529). Under these review mechanisms, a “ ‘court has the power to dismiss for lack of subject matter jurisdiction on any of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.’ ” Id. (quoting Williamson, 645 F.2d at 413).

In this case, Defendant submits evidence in support of his renewed motion to dismiss; thus, the motion presents a factual attack on subject matter jurisdiction. Plaintiff also responds to the motion with his own exhibits. Both Defendant's and Plaintiff's exhibits consist primarily of correspondence between former Alabama Attorneys General and the United States Department of Justice exposing their diametrical positions as to whether Alabama Act No. 95–648 requires § 5 preclearance. The content of that correspondence is not in dispute, is embraced by Plaintiff's allegations, and for the most part is set out verbatim in the Complaint. Because no material facts relevant to the standing and ripeness inquiry are in dispute, the jurisdictional question may be decided without resolving any factual disputes, and discovery and a hearing are unnecessary. We consider, therefore, the Complaint supplemented by the undisputed facts, and, unless controverted by the undisputed facts, the allegations in the Complaint are presumed true.

IV. BACKGROUND

A. The Enactment of Act No. 95–648

The events leading up to this litigation date back to 1995, when the Alabama Legislature passed Alabama Act, No. 95–648, codified as §§ 12–24–1 and 12–24–2. Section 12–24–1 provides:

The Legislature intends by this chapter to require the recusal of a justice or judge from hearing a case in which there may be an appearance of impropriety because as a candidate the justice or judge received a substantial contribution from a party to the case, including attorneys for the party, and all others described in subsection (b) of Section 12–24–2. This legislation in no way intends to suggest that any sitting justice or judge of this state would be less than fair and impartial in any case. It merely intends for all the parties to a case and the public be made aware of campaign contributions made to a justice or judge by parties in a case and others described in subsection (b) of Section 12–24–2.

Ala.Code § 12–24–1 (1995). Section 12–24–2, titled, “Filing by judges, justices, parties, and attorneys of disclosure statements concerning campaign contributions,” provides:

(a) Any justice or judge of an appellate or circuit court of this state shall file, at least two weeks prior to the commencement of his or her term of office, with the Secretary of State, a statement disclosing the names and addresses of campaign contributors and the amount of each contribution made to him or her in the election immediately preceding his or her new term in office. Contributions from political action committees may be accepted if the committee furnishes to the Secretary of State according to existing law a list of names and addresses of contributors and an amount properly attributable to each contributor. When a justice or judge does not file this annual statement, the Secretary of State shall notify the Administrative Office of Courts and that office shall withhold further compensation to the justice or judge pending compliance with this section.

(b) The Supreme Court shall provide under the appropriate rules of court, a rule or rules which provide as follows: In an appellate court proceeding the attorneys for all parties shall serve certificates of disclosure on all attorneys of record before such court within 28 days after the filing of the notice of appeal; or in a circuit court within 28 days after notice of the identity of the judge presiding on the case. Each certificate shall state the amount, if any, of campaign contributions by the respective individual donor or entity to any justice or judge of an appellate court where the case is pending, or if it is a trial court proceeding, the amount, if any, of campaign contributions by the respective individual donor or entity to the judge presiding over the case, made in the last election by the party or real parties in interest, any holder of five percent (5%) or more of a corporate party's stock, any employees of the party acting under that party's direction, any insurance carrier for the party which is potentially liable for the party's exposure in the case, the attorney for the party, other lawyers in practice with the attorney, and any employees acting under the direction of the attorney or acting under the direction of those in practice with the attorney. The failure to file the certificates of disclosure within the time frames set out above shall not affect the validity of the filing but the court may impose sanctions provided for by Rule 37(b)(2)(C, D) of the Alabama Rules of Civil Procedure, for the failure of a party to comply with this section after being ordered to do so.

(c) The action shall be assigned to a justice or judge regardless of the information contained in the certificates of disclosure. If the action is assigned to a justice or judge of an appellate court who has received more than four thousand...