Alabama Education Association v. State Superintendent of Education, Eta L ( 2011 )


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  •                                                             [PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    FILED
    ________________________      U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    No. 11-11266               DECEMBER 23, 2011
    ________________________             JOHN LEY
    CLERK
    D. C. Docket No. 5:11-cv-00761-CLS
    ALABAMA EDUCATION ASSOCIATON,
    an Alabama non-profit corporation,
    A-VOTE,
    an Alabama political committee,
    PAM HILL,
    JEFF BREECE,
    CHASSITY SMITH, et al.,
    Plaintiffs-Appellees,
    versus
    STATE SUPERINTENDENT OF EDUCATION, STATE OF ALABAMA,
    CHANCELLOR OF POSTSECONDARY EDUCATION, STATE OF
    ALABAMA, ATTORNEY FOR LEE COUNTY, STATE OF ALABAMA,
    Defendants-Appellants.
    ________________________
    No. 11-11267
    ________________________
    D.C. Docket No. 5:11-cv-00761-CLS
    ALABAMA EDUCATION ASSOCIATION,
    an Alabama non-profit corporation,
    A-VOTE,
    an Alabama political committee,
    PAM HILL,
    JEFF BREECE,
    CHASSITY SMITH, et al.,
    Plaintiffs-Appellees,
    versus
    GOVERNOR OF ALABAMA AND PRESIDENT OF THE STATE SCHOOL
    BOARD, DIRECTOR OF FINANCE, STATE OF ALABAMA,
    COMPTROLLER, STATE OF ALABAMA,
    Defendants-Appellants.
    ________________________
    No. 11-12609
    ________________________
    D.C. Docket No. 5:11-cv-01054-CLS
    INTERNATIONAL ASSOCIATION OF FIREFIGHTERS,
    an unincorporated labor organization,
    FIREPAC,
    a political action committee,
    AMERICAN FEDERATION OF TEACHERS LOCAL 2115, et al.,
    Plaintiffs-Appellees,
    versus
    SUPERINTENDENT OF EDUCATION,
    2
    in his capacity as the Superintendent of
    Education of the State of Alabama,
    STATE OF ALABAMA, CHANCELLOR OF POSTSECONDARY
    EDUCATION, in her capacity as Chancellor of Postsecondary Education
    of the State of Alabama, et al.,
    Defendants-Appellants.
    ________________________
    Appeals from the United States District Court
    for the Northern District of Alabama
    ________________________
    (December 23, 2011)
    Before DUBINA, Chief Judge, COX, Circuit Judge, and HUNT,* District Judge.
    DUBINA, Chief Judge:
    This appeal comes to us following the district court’s entry of a preliminary
    injunction preventing enforcement of Alabama Act No. 2010-761 (the “Act”).
    This Act would prohibit a state or local government employee from arranging “by
    payroll deduction or otherwise” the payment of any contribution to an
    organization that uses any portion of those contributions for “political activity.”
    The district court found that the statute impinges on important free speech rights
    protected by the First Amendment and that the Appellees—the Alabama Education
    *
    Honorable Willis B. Hunt, Jr., United States District Judge for the Northern District of
    Georgia, sitting by designation.
    3
    Association (“AEA”) and other organizations—are likely to succeed in showing
    the Act is both overbroad in its restrictions and unduly vague as to what
    constitutes political activity. We conclude that the constitutional question before
    us turns upon a question of state law. Rather than speculating as to the meaning of
    a state statute, we believe it is more in keeping with the principles of federalism to
    offer the Alabama Supreme Court an opportunity to explicate the Act.
    I.
    Alabama Code §§ 36-1-4.3 and 36-1-4.4 authorize public employees to
    request that the Alabama State Comptroller arrange for the payment of
    membership dues for employee organizations by payroll deduction. There is
    tension between this statute and Alabama Code § 17-17-5 which prohibits public
    employees from using government resources for any “political activities.” An
    employee found in violation of § 17-17-5 is subject to prosecution for the crime of
    trading in public office, a Class A misdemeanor. In 2010, the Comptroller’s
    Office reevaluated its interpretation of § 17-17-5 and changed its policy regarding
    salary deductions, thereafter declining to honor requests for deductions that
    benefited organizations involved in political activities, including AEA and its
    PAC, A-VOTE. Lawsuits followed and are still pending in the state courts.
    4
    After this policy change, in December 2010, Governor Riley called a special
    session of the legislature aimed at enacting ethics reform legislation. That special
    session amended § 17-17-5 to codify the position of the Comptroller’s Office,
    forbidding state and local government employees from arranging “by salary
    deduction or otherwise for any payments to a political action committee or . . . for
    any payments for the dues of any person so employed to a membership
    organization which uses any portion of the dues for political activity.” 
    Ala. Code § 17-17-5
    (b)(1). The legislation limits political activity to the following seven
    categories:
    a. Making contributions to or contracting with any entity which
    engages in any form of political communication, including
    communications which mention the name of a political candidate.
    b. Engaging in or paying for public opinion polling.
    c. Engaging in or paying for any form of political communication,
    including communications which mention the name of a political
    candidate.
    d. Engaging in or paying for any type of political advertising in any
    medium.
    e. Phone calling for any political purpose.
    f. Distributing political literature of any type.
    g. Providing any type of in-kind help or support to or for a political
    candidate.
    
    Id.
     The Act further requires that any organization seeking “to arrange by salary
    deduction or otherwise . . . shall certify to the appropriate governmental entity that
    5
    none of the membership dues will be used for political activity.” 
    Ala. Code § 17
    -
    17-5(b)(2).
    AEA collects a large percentage of its dues through salary deduction. AEA
    argues that these deductions are particularly important for its members who do not
    have checking accounts. In February 2011, AEA filed a complaint claiming that
    the Act unconstitutionally infringes on the First Amendment rights of AEA and its
    members. Two weeks after filing its complaint, AEA moved for a preliminary
    injunction barring enforcement of the Act on the grounds that it was likely to show
    that the Act was both unconstitutionally vague and overbroad. The district court
    agreed. In its opinion, the court reasoned that the “or otherwise” language of the
    statute reached beyond salary deductions to the personal political contributions of
    government employees. The district court also found that the term “political
    activity” was unduly vague.
    II.
    We review a district court’s grant of a preliminary injunction for an abuse of
    discretion. N. Am. Med. Corp. v. Axiom Worldwide, Inc., 
    522 F.3d 1211
    , 1216
    (11th Cir. 2008). The district court’s findings of fact are reviewed under a clearly
    erroneous standard. 
    Id.
     A finding of fact is clearly erroneous only when
    “although there is evidence to support it, the reviewing court on the entire
    6
    evidence is left with the definite and firm conviction that a mistake has been
    committed.” 
    Id.
     (internal quotation marks omitted). The district court’s
    conclusions of law are reviewed de novo, “understanding that application of an
    improper legal standard . . . is never within a district court’s discretion.” 
    Id.
    (internal quotation marks and brackets omitted).
    III.
    A. Certification of Questions to the Alabama Supreme Court.
    There is no question that a properly conceived ban on salary deductions to
    organizations engaged in political activity would be constitutional. See Ysursa v.
    Pocatello Educ. Ass’n, 
    555 U.S. 353
    , 355, 
    129 S. Ct. 1093
    , 1096 (2009)
    (“[N]othing in the First Amendment prevents a State from determining that its
    political subdivisions may not provide payroll deductions for political activities.”).
    In Ysursa, public employee unions challenged an Idaho state law ban on political
    payroll deductions as a violation of the First Amendment. The Court began by
    reiterating that the First Amendment “protects the right to be free from
    government abridgment of speech. While in some contexts the government must
    accommodate expression, it is not required to assist others in funding the
    expression of particular ideas, including political ones.” 
    Id. at 358
    , 
    129 S. Ct. at 1098
    ; Regan v. Taxation with Representation of Wash., 
    461 U.S. 540
    , 549, 103 S.
    7
    Ct. 1997, 2003 (1983) (“[A] legislature’s decision not to subsidize the exercise of
    a fundamental right does not infringe the right, and thus is not subject to strict
    scrutiny.”). The Court accepted that the unions challenging Idaho’s law faced
    substantial difficulties in collecting funds for their political speech without the
    assistance of the state through salary deductions. However, this fact posed no
    difficulty for the Court, which concluded,
    While publicly administered payroll deductions for political purposes
    can enhance the unions’ exercise of First Amendment rights, Idaho is
    under no obligation to aid the unions in their political activities. And
    the State’s decision not to do so is not an abridgment of the unions’
    speech; they are free to engage in such speech as they see fit. They
    simply are barred from enlisting the State in support of that endeavor.
    Ysursa, 
    555 U.S. at 359
    , 
    129 S. Ct. at 1098
    . The Court then held, “Idaho’s
    decision to limit public employer payroll deductions as it has is not subject to
    strict scrutiny under the First Amendment.” 
    Id.
     (internal citations and quotation
    marks omitted). Instead, “[g]iven that the State has not infringed the unions’ First
    Amendment rights, the State need only demonstrate a rational basis to justify the
    ban on political payroll deductions.” 
    Id.
     The Supreme Court concluded that the
    payroll deduction ban met the rational basis test. It wrote,
    The concern that political payroll deductions might be seen as
    involving public employers in politics arises only because Idaho
    permits public employer payroll deductions in the first place. . . .
    [T]he State’s response to that problem is limited to its source—in this
    8
    case, political payroll deductions. The ban on such deductions plainly
    serves the State’s interest in separating public employment from
    political activities.
    
    Id. at 361
    , 
    129 S. Ct. at 1099
    .
    Thus, the question before this court in the present case turns entirely on how
    the Act is interpreted. If it is meant only to reach payroll deductions for
    organizations engaged in electioneering activities such as those targeted by the
    Idaho statute at issue in Ysursa, then it presents no constitutional problems.1 A
    statute with a broader reach may implicate First Amendment concerns not
    explored in Ysursa. It has long been our practice that “[s]ubstantial doubt about a
    question of state law upon which a particular case turns should be resolved by
    certifying the question to the state supreme court.” Jones v. Dillard’s, Inc., 
    331 F.3d 1259
    , 1268 (11th Cir. 2003) (citing Moreno v. Nationwide Insur. Co., 
    105 F.3d 1358
    , 1360 (11th Cir. 1997)). There is a high likelihood that the Supreme
    Court of Alabama’s interpretation of the Act will resolve this matter; therefore, the
    state courts should have the opportunity to address this issue in the first instance,
    particularly since it is one so closely tied to statewide political reforms. We
    1
    The Idaho statute defines “political activity” as “electoral activities, independent
    expenditures, or expenditures made to any candidate, political party, political action committee or
    political issues committee or in support of or against any ballot measure.” 
    555 U.S. 353
     at 356,
    
    129 S. Ct. at 1096
    .
    9
    conclude sufficient cause exists to certify a question to the Alabama Supreme
    Court with respect to the scope of the Act.
    CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR
    THE ELEVENTH CIRCUIT TO THE SUPREME COURT OF ALABAMA
    PURSUANT TO RULE 18 OF THE ALABAMA RULES OF APPELLATE
    PROCEDURE.
    TO THE SUPREME COURT OF ALABAMA AND THE HONORABLE
    JUSTICES THEREOF:
    AEA contends that Alabama Act No. 2010-761 infringes a broader range of
    constitutionally protected activity than previously recognized as permissible under
    the First Amendment. Specifically, AEA argues that the Act’s “or otherwise”
    language would prevent government employees from making contributions to an
    organization engaged in political activity through any means, including personal
    donations of their own money. AEA also argues that the term “political activity”
    reaches a wide number of ill-defined activities, making it impossible for any
    organization to certify that it is in compliance with the Act. The state counters
    that “or otherwise” simply prevents the use of state resources in any
    way—whether through salary deductions or some other state mechanism—from
    10
    benefitting organizations involved in political activities. The state argues that
    “political activity” means electioneering activities.
    The interpretation of the Act is a question of state law that has not been
    specifically addressed by the Alabama Supreme Court or the intermediate state
    appellate courts. Therefore, we certify the following questions to the Alabama
    Supreme Court:
    1. Is the “or otherwise” language in the statute limited to the use of state
    mechanisms to support political organizations, or does it cover all
    contributions by state employees to political organizations, regardless of the
    source?
    2. Does the term “political activity” refer only to electioneering activities?
    The answers to these questions will permit this court to address AEA’s
    concerns and determine whether the Act runs afoul of the First Amendment. To
    facilitate the resolution of these questions, we direct the Clerk to transmit the
    entire record of this case, together with copies of the parties’ briefs, to the
    Alabama Supreme Court. Of course, the Alabama Supreme Court is in no way
    limited by our questions and may consider the case as it sees fit.
    B. Narrowing the District Court’s Injunction.
    11
    Although the ultimate resolution of this matter may depend on the Alabama
    Supreme Court’s resolution of the certified questions, we believe it is appropriate
    to narrow the district court’s injunction in the interim. In its memorandum
    opinion, the district court issued a preliminary injunction barring the Act’s
    enforcement in toto. However, a state’s restriction on payroll deductions for
    organizations engaged in electioneering activities would likely be found
    constitutional under Ysursa. To the extent the state limits its enforcement of the
    Act in this way, it may proceed. The preliminary injunction remains in place as to
    enforcement that extends beyond that range of conduct. 2
    IV.
    For the foregoing reasons, we delay final judgment as to the preliminary
    injunction until the Alabama Supreme Court has had an opportunity to render its
    interpretation of the Act.
    QUESTIONS CERTIFIED.
    2
    We also DISMISS the Governor of Alabama as a party to this appeal because the district
    court’s injunction did not apply to him.
    12
    

Document Info

Docket Number: 11-11266, 11-11267 and 11-12609

Judges: Dubina, Cox, Hunt

Filed Date: 12/23/2011

Precedential Status: Precedential

Modified Date: 10/19/2024