DOCUMENT 35

ELECTRONICALLY FILED
11/1/2019 4:59 PM
03-CV-2019-000531.00
CIRCUIT COURT OF
MONTGOMERY COUNTY, ALABAMA
GINA J. ISHMAN, CLERK
IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA

ALABAMA DEMOCRATIC PARTY, ET

)
AL.,
STATE DEMOCRATIC EXECUTIVE
)
COMMITTEE OF ALABAMA,
WORLEY NANCY, )
KELLEY RANDY ET AL, )
Plaintiffs, )
)
V. ) Case No.: CV-2019-000531.00
)
GILBERT SHEILA DEGAN, )
JUAREZ JULIA, )
DUNCAN BRANDY, )
BRACY NAPOLEON JR ET AL, )
Defendants.

ORDER

Plaintiffs Alabama Democratic Party (“ADP”), the State Democratic Executive

Committee of Alabama (“SDEC”), Nancy Worley, and Randy Kelley, initiated this action

by a Verified Complaint for Declaratory Judgment, Temporary Restraining Order, and

Further Injunctive Relief (“the Complaint”) filed October 30, 2019. Plaintiffs and

Defendants represent two different groups of Alabama Democrats claiming to have

adopted two different sets of bylaws for the SDEC and claiming to have set two

different, upcoming dates to, among other things, elect a new Chair and First Vice-

Chair of the SDEC.

The first of these competing election dates is imminent, and Plaintiffs sensibly

contend that conducting any such meeting/election prior to resolving the matters

addressed in their Complaint will lead to chaos and “debilitating confusion,” in part

because there is a real and substantial controversy as to whether such a meeting is

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properly authorized, and in part because there is a real and substantial controversy as

to which set of bylaws would govern such a meeting. Plaintiffs therefore seek

Temporary and Preliminary Injunctive Relief to maintain the status quo.

This Court held a hearing on this request on October 31, 2019. Counsel for

Plaintiffs and Defendants attended and presented argument. Much of their argument

concerned the threshold question of whether this Court can exercise jurisdiction in this

case at all. For the reasons that follow, this Court concludes that it does have

jurisdiction over this matter. Additionally, this Court concludes, for the reasons further

stated below, that the Plaintiffs’ request for a Temporary Restraining Order (“TRO”) is

due to be, and shall be, GRANTED.

JURISDICTION

1. The Plaintiffs assert jurisdiction under the Declaratory Judgment Act

(“DJA”), and it is clear to this Court that—absent some other source of law that acts to

take away jurisdiction—jurisdiction over this matter would be proper under the DJA. The

DJA provides circuit courts, and other courts, with “power to declare rights, status, and

other legal relations whether or not further relief is or could be claimed.” § 6-6-222, Ala.

Code (1975). The DJA’s “purpose is to settle and to afford relief from uncertainty and

insecurity with respects to rights, status, and other legal relations,” and it is to be

“liberally construed and administered.” Id. § 6-6-221. Jurisdiction under the DJA

extends to “any proceeding where declaratory relief is sought in which a judgment will

terminate the controversy or remove an uncertainty.” Id. § 6-6-226.

2. Clearly this is a case involving a real controversy between the parties and

“uncertainty … with respect to rights, status, and other legal relations.” Essentially, the
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parties are disputing who has the right to act on behalf of the ADP and the SDEC.

Specifically, among other things, they are disputing the validity of actions taken

purportedly on behalf of the SDEC (i.e., the enacting of bylaws at the October 5 and

October 12 meetings), and the effect of those actions on future proceedings. This

dispute is clearly a substantial source of uncertainty, of the kind the DJA is designed to

allow Courts to address.

3. Defendants, however, argued at the hearing that the normal rules of

declaratory-judgment jurisdiction do not apply to a case that they claim would require

this Court to enjoin “an election.” They also claim that the requested TRO would violate

the First Amendment to the Federal Constitution and would constitute an impermissible

prior restraint on speech, because it would prohibit them from peacefully assembling

and speaking about political and other related matters. These concerns are misplaced.

4. As to the question of enjoining “an election,” Defendants relied at the

hearing Ex parte Tucker, 181 So. 761 (Ala. 1938) (per curiam). Besides its being quite

old and rarely cited, this Court finds this case inapposite. Tucker involved an attempt to

restrain a Judge of Probate and other election officers from conducting a primary

election. 181 So. at 761. That case stated that “[a]n injunction will not issue, as a

general rule, for the purpose of restraining the holding of an election.” Id. at 762

(internal quotation marks omitted). In so doing, it referred to a primary election

conducted under statutory election procedures. See id. As far as this Court can tell, the

only other cases making similar statements about injunctions related to elections or

political parties have also referred to primary or general elections, contests of such

elections, or the determination of eligibility to run as a candidate in such elections (none

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of which are at issue here). See, e.g., Ex parte Baxley, 496 So. 2d 688, 692-–93 (Ala.

1986) (finding lack of jurisdiction to intervene in contest of primary election because

“political parties are empowered to settle their own disputes in primary elections.”)

(emphasis added); Alabama Republican Party v. McGinley, 893 So.2d 337 (2004)

(declining to “second-guess” party’s “right to determine who may be associated with the

party” where plaintiff challenged party’s refusal to certify her as candidate in Republican

primary); McAdory v. Alabama Democratic Party, 729 So. 2d 310 (1999) (affirming that

trial court lacked jurisdiction to review SDEC’s resolution of contest to primary

election).[1]

5. Counsel for the Plaintiffs raised a hypothetical at the hearing in which a

Probate Judge decided that his or her county would hold its general election vote in

June, rather than on the second Tuesday in November, arguing that surely a court

would have no problem issuing an immediate injunction to prevent such a rogue

election. Obviously, this is correct. Indeed, the Supreme Court has been very clear in

holding that:

The general rule without question is that courts of equity will not interfere
by injunction with the holding of elections political in character, nor take
jurisdiction of a contest after the election is held. But this court is
committed to the proposition that equity will interfere by injunction to
restrain elections not authorized by law. It will also restrain the usurpation
of office, or the assumption of functions of office where no lawful office
exists.

Working v. Jefferson Cnty. Election Comm’n, 2 So. 3d 827, 837 (Ala. 2008) (quoting

King v. Campbell, 988 So.2d 969 (Ala.2007), quoting in turn Dennis v. Prather, 103 So.

59 (Ala. 1925)) (emphasis in Working). Applying that rule in Working, the Court found

as follows:
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The Working plaintiffs, the Governor, and Bowman make no challenge to

the manner in which the February 5 special election was conducted or the
particular results of that election; the challenge here is to the very holding
of the election. It is a challenge to the election as one “not authorized by
law and therefore wholly void.” The jurisdictional limitations imposed by §
17–16–44 therefore are not applicable.

Id. at 838 (emphasis added); see also Veitch v. Vowell, 266 So.3d 678 (2018) (finding

jurisdiction over election-related claim and noting that “jurisdiction-stripping statute,”

i.e., Ala. Code § 17-16-44, “should be strictly construed”); Sears v. Carson, 551 So. 2d

1054, 1056 (1989) (finding jurisdiction to review actions of canvassing board where

board acted “far beyond its legislated role” and holding that “[i]f § [17-16-44] is allowed

to stand between the judiciary and such acts, any canvassing board would be provided

a license to change the results of an election by cabal”).

6. Similarly, the challenge raised by the Plaintiffs here “is to the very holding

of the election,” on the grounds that it is “not authorized by law and therefore [would be]

wholly void.”[2] Working, 2 So. 3d at 838. Again, this Court does not believe that the

cases cited above even have application to a situation involving disputed party bylaws

and a party meeting to elect officers—as opposed to the context of primary and general

election contests addressed in those cases. But, based on Working and the cases cited

therein, even if that line of cases were applicable here, this Court finds that jurisdiction

would still be proper because the central issue in this case is the validity and

authorization of the “very holding of the election” itself.

7. As for the First Amendment, this Court appreciates the Defendants’

reasonable concerns for their unquestioned right to assemble and speak, but finds no

reason that a TRO cannot be crafted so as to respect those rights while simultaneously

preventing Defendants and those acting in concert with them from purporting to act or
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holding themselves out as acting for or as the SDEC. Contrary to the concerns of

Defendants’ counsel at the hearing, this Court will not prevent the Defendants, or

anyone, from meeting to talk about politics, or anything else. It will simply prevent them,

temporarily and in order to avoid irreparable injury, from doing so in any official capacity

with regard to the ADP and SDEC. Cf. Working, 2 So. 3d at 837 (“[T]his court is

committed to the proposition that equity will interfere by injunction to restrain elections

not authorized by law. It will also restrain the usurpation of office, or the assumption of

functions of office where no lawful office exists.”).

WHETHER PLAINTIFFS MEET THE REQUIREMENTS FOR A TRO

8. The standard for granting a Preliminary Injunction or TRO is well-

established:

A plaintiff seeking a TRO has the burden of demonstrating (1) that without
the TRO the plaintiff would suffer immediate and irreparable injury; (2)
that the plaintiff has no adequate remedy at law; (3) that the plaintiff has
at least a reasonable chance of success on the ultimate merits of his
case; and (4) that the hardship imposed on the defendant by the TRO
would not unreasonably outweigh the benefit accruing to the plaintiff.

Lott v. E. Shore Christian Ctr., 908 So. 2d 922, 927 (Ala. 2005) (internal quotation

marks and alterations omitted) (emphasis in original).

9. This Court finds that Plaintiffs will suffer immediate and irreparable injury

if the Temporary Restraining Order is not granted. As noted above, and as alleged in

the verified Complaint and in the affidavit submitted by Plaintiffs, a situation in which

competing meetings were held under competing sets of bylaws, resulting in more than

one person claiming to be the validly elected Chair of the SDEC, would cause chaos

and confusion. Among other things, there will be confusion and controversy over the
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crucial question of which bylaws govern the conduct of the November 2 meeting

(assuming it is a valid meeting). And if the November 2 meeting takes place and a new

Chair of the SDEC is purportedly elected, it will not even be clear who is entitled to

preside over the November 16 meeting, nor what set of bylaws will govern that

meeting. Moreover, potential candidates for election are required to submit declarations

of candidacy to the Chair of the SDEC by November 8. Without a TRO, it is likely that

such persons would not know to whom to submit such declarations. And this is to say

nothing of questions such as who is entitled to possession of the Party offices, the

checkbook, etc. Such consequences are more than sufficient to constitute immediate

and irreparable injury.

10. This Court further finds that Plaintiffs will have no adequate remedy at

law for such injury if the TRO is not granted.

11. This Court finds that the Plaintiffs have established a reasonable chance

of prevailing on the merits of their claim for declaratory and permanent injunctive relief.

According to the verified Complaint and the Plaintiffs’ affidavit, Nancy Worley, the

current Chair of the SDEC, called a meeting of the SDEC for October 12, 2019. Over

170 SDEC members, which constituted a quorum, attended the October 12 meeting,

and at the meeting certain bylaws were passed. It was made clear at the time of the

vote that those bylaws were offered to completely replace and substitute for any then-

existing bylaws. There is an independent controversy about whether the Defendants’

bylaws were even validly passed on October 5. But even assuming they were, the

above evidence, if established, would appear to show that the October 5 bylaws were

repealed and replaced.[3] This Court is satisfied that the Plaintiffs have at least a
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reasonable chance of prevailing on, at a minimum, the key question of which set of

bylaws constitute the current and valid bylaws of the SDEC.

12. This Court finds that the hardship imposed on the Defendants does not

unreasonably outweigh the benefit accruing to the Plaintiffs from granting of the

Temporary Restraining Order. The order preserves the status quo and prevents the

Defendants or the Plaintiffs from conducting elections until such time as this Court can

consider the merits.

13. This Court finds that the appropriate bond is set forth below.

14. Therefore, all requirements of Rule 65 of the Alabama Rules of Civil

Procedure have been satisfied by the Plaintiffs.

TEMPORARY RESTRAINING ORDER

Based on the foregoing facts and conclusions of law, it is ORDERED,

ADJUDGED, and DECREED as follows:

Defendants and Plaintiffs, and all persons acting in concert with them, are

hereby restrained from:

1. Holding any meeting of, or purportedly of, the SDEC for the purpose of

electing any members or officers of the SDEC, or for the purpose of

amending, repealing, restating, or otherwise taking any action with respect to

bylaws of the SDEC, or otherwise purporting to elect any officers or members

of the SDEC or to amend, repeal, restate, or otherwise take any action with

respect to bylaws of the SDEC; and

2. Denying that Nancy Worley is the Chair of the Alabama Democratic Party for

purposes of certifying candidates to the Secretary of State under Title 17 of

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the Alabama Code subsequent to the close of qualifying, scheduled to occur

on November 8, 2019.

It is further ORDERED that Plaintiffs as soon as practicable obtain a bond

suitable for this purpose in the amount of $500.

This Order shall expire on the 11th day of November, 2019, or as otherwise

Ordered.

This matter is set for hearing on Plaintiff’s request for a Preliminary Injunction on

the 12th day of November, 2019, in Courtroom 3B, at the Montgomery County,

Alabama Courthouse in Montgomery, Alabama at 2:00 pm.

[1] In another case in this Court, Davis v. Alabama Democratic Party, Judge Hobbs,
relying on McGinley, declined to interfere in the SDEC’s application of the “Radney
Rule,” by which it refuses to certify primary candidates who had supported Republicans
in recent elections. See Order of Nov. 18, 2015, Davis v. Alabama Democratic Party,
No. 2015-901698.00 (Doc. 33).

[2] By analogy, the relevant “law” on the facts of this case would be the SDEC Bylaws.

[3] Defendants have suggested that the opinion and intervention of the Democratic
National Committee (“DNC”) are relevant to determining which set of bylaws are valid.
But Plaintiffs allege in their verified Complaint and affidavit that the DNC has never
claimed to have, and does not have, the power to impose bylaws on the SDEC. Rather,
the DNC seeks to use its ability to deny the SDEC participation in DNC activities as
leverage to induce the SDEC to adopt the DNC’s preferred bylaws. Be that as it may,
the Court finds that the Plaintiffs have at least a reasonable chance of establishing that
the DNC’s actions are not controlling for the purpose of determining the bylaws that
control the SDEC for purposes of state law.

DONE this 1st day of November, 2019.

/s/ GREG GRIFFIN

CIRCUIT JUDGE