Tulley v. City of Jacksonville (Ex parte Tulley)

199 So.3d 812

Ex parte Jason Dean TULLEY.

(In re Jason Dean Tulley

v.City of Jacksonville).

1140049.

Supreme Court of Alabama.

Sept. 4, 2015.

Rehearing Denied Nov. 20, 2015.

J.D. Lloyd, Birmingham; and Joseph J. Basgier of Bloomston & Basgier, Birmingham, for petitioner.

Marilyn May Hudson, Jacksonville, for respondent.

Michael P. Hanle, Birmingham, for amicus curiae BamaCarry, in support of the petitioner.

BOLIN, Justice.

Jason Dean Tulley was convicted in the Calhoun Circuit Court of carrying a pistol on premises not his own in violation of Ordinance No. O–514–10 of the City of Jacksonville (“the City”), which adopts § 13A–11–52, Ala.Code 1975. In a plurality opinion, the Court of Criminal Appeals affirmed Tulley's conviction. Tulley v. City of Jacksonville, 199 So.3d 779 (Ala.Crim.App.2014). We granted certiorari review to determine whether by charging him under Ordinance No. O–514–10, which incorporates by general reference § 13A–11–52, the City violated Tulley's due-process rights.

Ordinance No. O–514–10 provides, in part:

“Sec. 16.1. Adoption of state misdemeanors, violations and offenses.

“(a) Any person committing an offense within the corporate limits of the city, or within its police jurisdiction, that is declared by a law of the state to be a misdemeanor shall be guilty of an offense against the city.

“(b) Any person committing an offense within the corporate limits of the city, or within its police jurisdiction, that is declared by a law of the state to be a violation shall be guilty of an offense against the city.

“(c) Any person committing within the corporate limits of the city, or within its police jurisdiction, an offense as defined by section 13A–1–2 of the Alabama Criminal Code, which offense is not declared by law of the state to be a felony, misdemeanor or violation shall be guilty of an offense against the city.

“(d) A person convicted of a violation of this section shall be punished by a fine not exceeding $500.00 or by imprisonment in the city jail or hard labor for a period not exceeding six months, or by any combination, except when in the enforcement of penalties prescribed in Code of Ala.1975, § 32–5A–191 or [§ ] 32–5A–191.3, such penalty shall not exceed the fines and sentences of imprisonment or hard labor as provided by state law; when a provision of this Code provides a particular penalty expressly applicable to certain violations, the express penalty shall be the penalty imposed upon the conviction for those certain violations. The penalty imposed upon a corporation shall consist of the fine only, plus costs of court. Except as otherwise provided by law or ordinance, with respect to violations of this Code that are continuous with respect to time, each day that the violation continues is a separate offense.”¹

Ordinance No. O–514–10 is a general-reference ordinance, which adopts by reference existing state misdemeanors, offenses, and violations and makes them municipal misdemeanors, offenses, and violations when those acts occur within the City's corporate limits or its police jurisdiction. See Evans v. Sunshine–Jr. Stores, Inc., 587 So.2d 312 (Ala.1991), superseded by regulation, Krupp Oil, Inc. v. Yeargan, 665 So.2d 920 (Ala.1995) (addressing a general-reference ordinance and distinguishing a specific-reference ordinance, which incorporates an earlier state statute by specific and descriptive reference); Casteel v. City of Decatur, 215 Ala. 4, 4, 109 So. 571, 572 (1926) (noting that a general-reference ordinance assures that the ordinance “puts the local government behind the suppression of evils defined and made public offenses by state law” and avoids the “expense in enacting and promulgating a volume of penal ordinances in the same terms as well-known public statutes”).

In Ex parte Davis, 200 Ala. 436, 76 So. 368 (1917), the Court addressed a municipal ordinance that adopted state misdemeanors as offenses against the municipality. The Court stated:

“As the Constitution and the statutes of this state prevent municipal corporations from enacting laws inconsistent with the state laws, and also authorize state and municipal laws condemning the same act and making a given act an offense both against the state and against the municipality, we can see no valid constitutional or statutory objection to the passage of ordinances like the one in question, though the statutes must be resorted to, in order to determine whether or not a given ordinance is violated. And the Constitution and the statutes must be consulted in determining whether a given ordinance is valid or is void. If it is inconsistent with either, then under the laws of this state it is void.

“If the ordinance must be consistent with the statutes, then we see no objection to the theory that an ordinance may follow the statutes, by adopting them, as was done in this case (in so far as a statutory offense can be made an offense against the municipality), without setting out in the ordinance the statutes so adopted. It could not, by so embodying the adopted laws, be rendered any more certain or definite, because it cannot be inconsistent with the statutes, and must in legal effect follow them if it deal with the same subject. It might be more convenient for the ordinance to set out, in effect, at least, the statute or statutes which it adopts; but it would even then be necessary to refer to the statute to test the validity of an ordinance which dealt with the same subject.”

200 Ala. at 437, 76 So. at 369.

In the present case, subsection (c) of Ordinance No. O–514–10 provides that “offenses” not declared to be misdemeanors, felonies, or violations of state law are offenses against the City. The City adopted the definition of “offense” in § 13A–1–2(10), Ala.Code 1975, which states that an offense is “[c]onduct for which a sentence to a term of imprisonment, or the death penalty, or to a fine is provided by any law of this state or by any law, local law, or ordinance of a political subdivision of this state.” Section 13A–11–52, which describes the offense with which Tulley was charged, does not designate the offense described therein as a misdemeanor, felony, or violation of state law. At the time of Tulley's conviction, it provided:²

“Except as otherwise provided in this article, no person shall carry a pistol about his person on premises not his own or under his control; but this section shall not apply to any sheriff or his deputy or police officer of an incorporated town or city in the lawful discharge of the duties of his office, or to United States marshal or his deputies, rural free delivery mail carriers in the discharge of their duties as such, bonded constables in the discharge of their duties as such, conductors, railway mail clerks and express messengers in the discharge of their duties.”

The Court of Criminal Appeals set out the following facts regarding Tulley's conviction:

“On March 31, 2011, Tulley, who had a pistol unconcealed in a hip holster, entered the First Educators Credit Union (‘the credit union’) in the City of Jacksonville to conduct business there. James Clayton, an officer with the Jacksonville Police Department, was working off-duty as a security officer at the credit union. Clayton saw Tulley walk into the credit union with the pistol on his hip.

“Clayton approached Tulley and told him that he could not carry the pistol in the credit union and that he needed to return the pistol to his vehicle. According to Clayton, ‘[a]t first, [Tulley] was very argumentative about it’ and asserted that ‘[i]t was his constitutional right to carry a firearm into the building.’ Clayton testified that Tulley was ‘defiant’ but did not raise his voice or shout. Tulley ultimately complied with Clayton's request, returned the pistol to his vehicle, and reentered the credit union.

“Tulley was arrested a few days later and was charged with carrying a pistol on premises not his own. See § 13A–11–52, Ala.Code 1975. Tulley was convicted in the Jacksonville Municipal Court, where he was ordered to pay a $50 fine and $200 in costs. Tulley appealed to the Calhoun Circuit Court.

“In the circuit court, Tulley filed two motions to dismiss the charge against him; the circuit court denied both. Following a bench trial, Tulley was convicted and was sentenced to 30 days' imprisonment and ordered to pay court costs and a $200 fine. The circuit court suspended Tulley's 30–day sentence and placed him on 6 months' probation. Tulley moved for a new trial; that motion was denied by operation of law. See Rule 24.4, Ala. R.Crim. P.”

Tulley, 199 So.3d at 782 (footnote and reference to record omitted).

In appealing his conviction, Tulley argued before the Court of Criminal Appeals, among other things, that § 13A–11–52 was unconstitutionally vague because it did not contain a punishment provision for violating the statute, nor did § 13A–11–52 designate whether a violation of the statute was a felony or a misdemeanor so that another Code provision might provide a sentence to save the statute. Tulley further argued that by charging him under § 13A–11–52 the City had violated his rights to due process.

In addressing this argument, a plurality of the Court of Criminal Appeals acknowledged the history of § 13A–11–52 and its predecessor statutes, beginning with a precursor act adopted in 1919, which had included a sentence. The main opinion of the Court of Criminal Appeals noted that the substance of the 1919 act, including the sentencing provision, was carried forward in the 1923 recodification of the Alabama Code. The main opinion noted that the 1940 recodification read as follows:

“ ‘Carrying a pistol on premises not his own; who may carry a pistol. Except as otherwise provided in this chapter no person shall carry a pistol about his person on premises not his own or under his control; but this section shall not apply to any sheriff or his deputy or police officer of an incorporated town or city in the lawful discharge of the duties of his office, or United States

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