WM Mobile Bay Environmental Center, Inc. v. The City of Mobile Solid Waste Authority

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-10239
________________________
D.C. Docket No. 1:13-cv-00434-KD-N
WM MOBILE BAY ENVIRONMENTAL CENTER, INC.,
Plaintiff - Counter Defendant - Appellant,
versus
THE CITY OF MOBILE SOLID WASTE AUTHORITY,
Defendant - Counter Claimant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(August 26, 2020)
Before WILSON, JILL PRYOR, and LAGOA, Circuit Judges.
LAGOA, Circuit Judge:
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This diversity case requires us to determine whether Alabama law permits a
judgment creditor to execute on certain real property owned by an Alabama solid
waste disposal authority. Appellant WM Mobile Bay Environmental Center, Inc.
(“WM Mobile”), seeks to partially satisfy its multi-million-dollar judgment against
Appellee the City of Mobile Solid Waste Authority (the “Authority”) by executing
on real property owned by the Authority that WM Mobile claims has never been
used for waste disposal purposes. The parties dispute whether such property is
exempt from execution under section 6-10-10 of the Alabama Code or, alternatively,
Alabama common law. However, Alabama law is not clear on how we should treat
property owned by a solid waste disposal authority, with case law supporting each
party’s arguments.
The issues in this appeal are based solely on Alabama statutory and common
law. Principles of comity and federalism instruct us that “[b]ecause the only
authoritative voice on Alabama law is the Alabama Supreme Court, it is axiomatic
that that court is the best one to decide issues of Alabama law.” Blue Cross & Blue
Shield of Ala., Inc. v. Nielsen, 116 F.3d 1406, 1413 (11th Cir. 1997). We therefore
respectfully certify the issues of Alabama law discussed below to the highest court
of that state, and if the Alabama Supreme Court accepts our request, its
determination will be dispositive.
I. FACTUAL AND PROCEDURAL BACKGROUND
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WM Mobile brought this action in federal court against the Authority, alleging
that the Authority breached various provisions of a contract between WM Mobile
and the Authority for the operation of a landfill (the “Landfill”) owned by the
Authority. After a jury trial, WM Mobile obtained a judgment against the Authority
totaling $6,034,045.50. This Court affirmed that judgment in WM Mobile Bay
Environmental Center, Inc. v. City of Mobile Solid Waste Authority, 672 F. App’x
931 (11th Cir. 2016).
To partially satisfy its judgment,1 WM Mobile applied to the district court for
a writ of execution against a 104-acre parcel of land (the “West Tract”) owned by
the Authority that sits adjacent to the Landfill. The Authority purchased the West
Tract in 1994 and it “has been held by the [Authority] for expansion of the Chastang
Landfill if needed. The expansion has been discussed but has not been needed to
date.”
The Authority moved to quash WM Mobile’s request for a writ of execution,
asserting, among other things, that Alabama law prohibits execution on the West
Tract because that land is owned by the Authority for public use. The Authority
emphasized its role as a public corporation, its purpose and limited rights under the
1
At the time it moved for the writ of execution, WM Mobile claimed $5,308,640.23
outstanding on its judgment, having recovered about $725,000 by withholding royalty payments
otherwise due to the Authority under their contract. The Authority disputes the amount withheld
by WM Mobile and claims that WM Mobile has underreported its revenue.
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statutes authorizing its creation, and its relationship with the City of Mobile (the
“City”). The Authority argued that its property is held for public use and should be
considered, for debt collection purposes, that of the City. Thus, the Authority
argued, the West Tract was exempt from execution under Alabama common law and
section 6-10-10 of the Alabama Code, which prohibits execution on property
“belonging to the several counties or municipal corporations in this state and used
for county or municipal purposes.”
The district court agreed with the Authority and granted its motion to quash.
After first rejecting the Authority’s other arguments, the district court found that the
West Tract “belongs” to the City and is used for municipal purposes, as required by
section 6-10-10. The district court relied on the “longstanding principle [in
Alabama] that public property is exempt” and discussed cases describing the role of,
and certain protections afforded to, certain public corporations. The district court
found that these principles are codified in section 6-10-10 and held that the West
Tract is protected from execution under that provision. This appeal ensued.
II. ANALYSIS
On appeal, WM Mobile argues that the district court erred by finding that the
West Tract was exempt from execution because Alabama’s statutory and common
law exemptions apply only to property owned by counties or municipalities, not
public corporations. The Authority counters that, because of the close connection
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between the Authority and the City and the statutory purpose of the Authority, the
West Tract should be deemed to be owned by the City for purposes of § 6-10-10.
The Authority further argues that, regardless of whether the West Tract is owned by
the City, the common law exemption protects the West Tract from execution because
it is used for a public purpose.
The parties also dispute whether the West Tract is used for public purposes.
WM Mobile argues that neither section 6-10-10 nor the common law exemption to
execution applies because the Authority, which has owned the West Tract since
1994, is simply holding the West Tract for possible expansion of the Landfill. The
Authority, in turn, argues that it is statutorily restricted to holding the West Tract for
future public purposes and that temporary non-use is insufficient to negate the
statutory and common law exemptions.
1. The statutory relationship between the Authority and the City
Both parties rely on the role of the Authority and its relationship to the City,
which we summarize below, to support their respective arguments. The Authority
is a public corporation created by the City and authorized by Chapter 89A of the
Alabama Code. The Alabama Legislature, through Chapter 89A, declared the “need
for planning, research, development, and innovation in the design, management, and
operation of facilities for solid waste management” and concluded with the need for
the creation of “authorities which will have the power to issue and sell bonds and
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notes . . . to acquire and construct such facilities.” Ala. Code § 11-89A-1. These
authorities are organized as public corporations. Id. §§ 11-89A-3, 11-89A-4(d).
To incorporate a solid waste disposal authority, at least three qualified electors
of a county or municipality must file an application with the governing body of their
county or municipality. Id. § 11-89A-3. The governing body of the county or
municipality must then review the electors’ application and adopt a resolution either
denying the application or declaring the need for the requested authority and
authorizing the electors to file incorporation documents for the authority. Id. Once
incorporated, the authority can acquire facilities for waste disposal and enter into
contracts to accomplish its statutory purpose. See id. § 11-89A-8(a)(5), (12). It can
also “borrow money,” “assume obligations secured by a lien” on its facilities, and
“sue and be sued in its own name.” See id. § 11-89A-8(a)(2), (6), (11).
The Authority’s ability to borrow money and issue bonds is significant. The
Alabama constitution prohibits the legislature from authorizing “any county, city,
town, or other subdivision of this state to lend its credit, or to grant public money or
thing of value in aid of, or to any individual, association, or corporation whatsoever,
. . . by issuing bonds or otherwise.” Ala. Const. art. IV, § 94(a). Statutorily
authorized public corporations, however, are not subject to this constitutional
restriction because they are “[s]eparate, independent public corporations[,] . . . not
subdivisions of the State within the meaning of Section 94 of the [Alabama]
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Constitution.” Knight v. W. Ala. Envtl. Improvement Auth., 246 So. 2d 903, 907
(Ala. 1971). As recognized by the Alabama Supreme Court:
Public corporations were initially authorized by the Legislature as a
means for municipalities to finance improvements to their utilities
infrastructure without running afoul of constitutional and statutory debt
limitations, as well as to shield municipalities from the large financial
obligations that often accompany such utilities projects.
Water Works & Sewer Bd. of Talladega v. Consol. Publ’g, Inc., 892 So. 2d 859, 861
(Ala. 2004).
Nonetheless, a public corporation is not completely separate from the county
or municipality that authorizes it, and, in some ways, the role played by the local
government is analogous to a shareholder of a public corporation. For example, the
City is the Authority’s “determining municipality” because it authorized the creation
of the Authority. See Ala. Code §§ 11-89A-2(9), 11-89A-3. The Authority’s board
of directors is elected by the City’s governing body, and the City must approve any
amendments to the Authority’s articles of incorporation. See id. §§ 11-89A-5, 11-
89A-6. In the event the Authority is dissolved, title to its property will vest in the
City. See id. § 11-89A-21. Moreover, any net earnings generated by the Authority,
if any, are paid over to the City because the Authority must operate as a nonprofit
corporation. See id. § 11-89A-19. Additionally, by statute, the Authority shares
certain characteristics with the City. For example, the Authority has the power of
eminent domain, see id. § 11-89A-14, its directors can be removed only via the same
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impeachment process used to remove municipal officials, see id. § 11-89A-6(d), and
the Authority is required to include “City of Mobile” in its corporate name, see id. §
11-89A-4(b)(4).
2. Statutory exemption from execution
In light of the statutory relationship between the Authority and the City, we
first consider section 6-10-10’s exemption from execution.
a. Section 6-10-10 of the Alabama Code
Alabama law permits a judgment creditor to obtain a writ of execution against
“the lands and goods of the party against whom such judgment is entered.” Ala.
Code § 6-9-1; see also id. §§ 6-9-20 to -27 (establishing the process for issuance of
writs). Generally, judgment creditors may execute against “real property to which
the defendant has a legal title . . . or in which he has a vested legal interest in
possession, reversion, or remainder, whether he has the entire estate or is entitled to
it in common with others.” Id. § 6-9-40(1). Under section 6-10-10, however, “[a]ll
property, real or personal, belonging to the several counties or municipal
corporations in this state and used for county or municipal purposes shall be exempt
from levy and sale under any process or judgment whatsoever.”
To claim an exemption under section 6-10-10, a judgment debtor must
therefore show that the property subject to execution “belong[s] to” a county or
municipality and is “used for county or municipal purposes.” The parties agree that
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the Authority owns the West Tract and that the Authority is a public corporation—
not a municipal corporation—separate from the City. The issues then are whether
the West Tract belongs to the City, even though it is owned by the Authority, and
whether the West Tract is being used for county or municipal purposes.
b. Does the West Tract belong to the City?
Alabama’s statutes do not define the phrase “belonging to” as used in section
6-10-10. Under Alabama law, 2 courts must first look to the language of the statute.
Lane v. State, 66 So. 3d 824, 827–28 (Ala. 2010). If the statutory language is
unambiguous based on its plain and ordinary meaning, courts may not engage in
judicial construction. Id. at 828. But when Alabama courts must construe a statute,
the text of the statute must be given its ordinary and commonly understood meaning.
Id. Applying these rules of statutory interpretation, the phrase “belonging to” refers
to ownership of property. See Belong, Black’s Law Dictionary (11th ed. 2019) (“To
2
In this diversity case involving Alabama substantive law, we must decide the scope of
section 6-10-10 “the way it appears the state’s highest court would.” Ernie Haire Ford, Inc. v.
Ford Motor Co., 260 F.3d 1285, 1290 (11th Cir. 2001) (quoting Royal Ins. Co. of Am. v. Whitaker
Contracting Corp., 242 F.3d 1035, 1040 (11th Cir. 2001)). We therefore employ Alabama’s rules
on statutory interpretation. See Belanger v. Salvation Army, 556 F.3d 1153, 1155–57 (11th Cir.
2009) (applying Florida’s statutory interpretation rules when construing a Florida statute);
Birnholz v. 44 Wall St. Fund, Inc., 880 F.2d 335, 338–41 (11th Cir. 1989) (same). Nonetheless,
the Alabama interpretation principles used in this case are consistent with our framework for
construing statutes. See, e.g., In re BFW Liquidation, LLC, 899 F.3d 1178, 1187–88 (11th Cir.
2018) (noting that we must start with the “language of the statute itself” and, if the language has a
plain and unambiguous meaning, “the inquiry is over”).
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be the property of a person or thing.”). Thus, the plain language of the statute limits
the phrase “belongs to” to the legal ownership of the West Tract.
As pointed out by WM Mobile, Alabama case law provides ample support for
the proposition that public corporations and their property are separate from the
municipalities or counties that created them. See, e.g., Water Works & Sewer Bd. of
Selma v. Randolph, 833 So. 2d 604, 607–08 (Ala. 2002) (finding that public funds
distributed by a water works board—a type of public corporation—were not “funds
belonging to the state, county or municipality” and, therefore, the board was not
subject to Alabama’s Sunshine Law); George A. Fuller Co. v. Vulcan Materials Co.,
Se. Div., 301 So. 2d 74, 76 (Ala. 1974) (finding that, while public corporations may
enjoy certain immunities from taxation, they are separate from the political
subdivision that established them and, therefore, Alabama’s public bonding statute
was inapplicable); Knight, 246 So. 2d at 906–07 (holding that public corporations
are not subject to Alabama’s constitutional restriction on local government
borrowing because they are “[s]eparate, independent public corporations[,] . . . not
subdivisions of the State within the meaning of Section 94 of the Constitution”); In
re Opinion of the Justices, 49 So. 2d 175, 180 (Ala. 1950) (“It is well established by
the decisions of this court that a public corporation is a separate entity from the state
and from any local political subdivision, including a city or county, within which it
is organized.”). This case law underscores the conclusion that the statute’s plain
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language would prevent the Authority from taking advantage of section 6-10-10’s
exemption from execution.
As pointed out by the Authority, however, there is a separate line of Alabama
cases that has treated public corporations and their property as if the public
corporations were part of the relevant municipality or county. See, e.g., Water Works
& Sewer Bd. of Talladega, 892 So. 2d at 861–63 (finding that a water works board
“perform[ed] a municipal function” and, therefore, its writings were “public
writings” subject to disclosure under Alabama’s Open Records Act); In re Opinion
of the Justices, 179 So. 535, 536 (Ala. 1938) (concluding that housing authorities
are exempt from ad valorem taxation because the authorities are administrative
agencies of the municipalities and their “property is therefore for certain purposes
that of a municipal corporation”). In this context, the Authority’s statutory purpose
of providing solid waste disposal for the City, its structural relationship with the
City, and its similarities with certain aspects of state subdivisions become relevant.
See supra Part II.1.
The Alabama Supreme Court addressed a related issue in a pair of decisions
involving a judgment creditor’s attempt to collect a judgment entered against some
municipal housing authorities: Hamrick Construction Corp. v. Rainsville Housing
Authority (Hamrick I), 447 So. 2d 1295 (Ala. 1984), and Rainsville Housing
Authority v. Hamrick Construction Corp. (Hamrick II), 456 So. 2d 38 (Ala. 1984).
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Like the Authority, municipal housing authorities are public corporations. See Ala.
Code § 24-1-22(1). Municipal housing authorities, however, are organized pursuant
to § 24-1-23 of the Alabama Code, and, as discussed below, the statutory language
relating to municipal housing authorities materially differs from the statutory
language relating to solid waste authorities.
In Hamrick I, the Alabama Supreme Court affirmed a trial court order
quashing, pursuant to section 24-1-40 of the Alabama Code, writs of garnishment
issued against the municipal housing authorities’ funds. 447 So. 2d at 1296–97,
1300. Section 24-1-40 provides, in relevant part, that a municipal housing
authority’s property “shall be exempt from levy and sale by virtue of an execution,
or other process, to the same extent as now enjoyed by the properties of towns, cities,
and counties of Alabama.” The Alabama Supreme Court therefore looked to section
6-10-10 to determine the extent of the exemption enjoyed by the housing authorities.
See Hamrick I, 447 So. 2d at 1296–97. In seeking to avoid application of the
exemption, the judgment creditor argued that the municipal housing authorities’
property was not being used for public purposes but instead was being used for
private housing. Id. at 1297. In addressing this argument, the Alabama Supreme
Court noted the statutory limits placed on the municipal housing authorities’ use of
their property and explained that, in a previous case involving a county housing
authority, “the parties and the Court took for granted that the defendant’s ‘property
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for certain purposes is that of a municipal (county) corporation,’ and did not question
the applicability of the parallel exemption of county housing authority property.” Id.(quoting Rayborn v. Hous. Auth. of Washington Cnty., 164 So. 2d 494, 495 (Ala.
1964)). The Alabama Supreme Court therefore concluded that the municipal
housing authorities’ property was devoted to “public use” and was protected under
section 24-1-40. See id.In Hamrick II, the Alabama Supreme Court subsequently was presented with
the question of whether the officers of the municipal housing authorities could be
subject to a writ of mandamus directing payment of the judgment. 456 So. 2d at 39.
Under Alabama law, “mandamus may lie against municipal officials to compel
payment of a judgment against the city,” but the housing authorities argued that they
were not “a municipal corporation nor an arm or a subdivision thereof” and that,
therefore, their officers could not be subject to mandamus. Id. at 38–39. The
Alabama Supreme Court found that fact to be non-dispositive, noting that the
legislative act authorizing municipal housing authorities declared that such an
authority constitutes “a public body and a body corporate and politic exercising
public powers,” id. at 39 (quoting Ala. Code § 24-1-27(a)), and—again—that a
housing authority’s “property for certain purposes is that of a municipal (county)
corporation,” id. (quoting Rayborn, 164 So. 2d at 495). Thus, the officers of the
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municipal housing authorities were deemed public officials subject to mandamus.
See id.Although the Hamrick cases set forth a clear rule relating to municipal housing
authorities—their property is exempt from execution, but their officers are subject
to mandamus—those cases are not dispositive of the case before us. The Alabama
Code does not expressly provide solid waste disposal authorities protection from
execution—as it does for municipal housing authorities through section 24-1-40.
Indeed, Hamrick I discussed section 6-10-10 not because property owned by
municipal housing authorities inherently “belongs to” the relevant municipality, but
because section 24-1-40 expressly incorporates section 6-10-10’s requirements in
order to determine the scope of section 24-1-40’s statutory exemption from
execution. See 447 So. 2d at 1296–97. Similarly, in Hamrick II, the court relied on
the legislative declaration that a municipal housing authority “shall constitute a
public body and a body corporate and politic exercising public powers” to find that
municipal housing authority officials should be treated as public officials for
mandamus purposes. See 456 So. 2d at 39 (quoting Ala. Code § 24-1-27(a)). No
such legislative declaration or broad grant of powers exists for solid waste disposal
authorities. See Ala. Code 11-89A-8. The statutory differences between municipal
housing authorities and solid waste disposal authorities therefore suggest that we
should not apply the reasoning in the Hamrick cases here. See State v. Dean, 940
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So. 2d 1077, 1080 (Ala. Crim. App. 2006) (explaining that the legislature knows
how to effectuate its intent through legislation and courts should not interpret statutes
to compensate for perceived omissions); see also 84 Lumber Co. v. City of
Northport, 250 So. 3d 567, 575 (Ala. Civ. App. 2017) (“[I]f no exceptions to the
positive terms of a general statute are made, the conclusive presumption is that the
legislature intended none, and the duty of the court is to interpret law not make law
by engrafting exceptions upon statutes.” (quoting City of Birmingham v. Weston, 172
So. 643, 646 (Ala. 1937))).
Still, in both Hamrick I and Hamrick II, the Alabama Supreme Court noted
that a public corporation’s property may be “for certain purposes . . . that of a
municipal (county) corporation.” Hamrick I, 447 So. 2d at 1297; accord Hamrick
II, 456 So. 2d at 39. That statement is consistent with Water Works & Sewer Board
of Talladega and In re Opinion of Justices (1938), but appears to be in tension with
the rules articulated in Water Works & Sewer Bd. of Selma, George A. Fuller Co.,
and In re Opinion of Justices (1950). Additionally, we have not been able to discern
from the former group of cases the factors that a trial court should consider when
determining the “certain purposes” for which a public corporation’s property is
deemed “that of a municipal (county) corporation.”
c. Is the West Tract “used for . . . municipal purposes”?
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Even if section 6-10-10 applies to property owned by solid waste disposal
authorities, we are faced with another unsettled question of Alabama law: whether
an authority’s property is “used for county or municipal purposes” when it lays
unused for many years but its use is statutorily restricted. See Ala. Code § 6-10-10.
Pursuant to section 6-10-10, if property owned by a city or municipality is not
used for public purposes, it may be seized and sold. See Hamrick I, 447 So. 2d at
1297 (“This Court has applied this statute and held that City property not used for
public purposes may be seized and sold.”). In Russell & Johnson v. Town of
Oneonta, 73 So. 986 (Ala. 1917), the Alabama Supreme Court noted that municipal
property does not lose its public purpose merely because “for some short period the
city did not have occasion to use all thereof, or that there was a temporary use of
same for private purposes.” Id. at 987. However, where property is owned by a
municipality but there is no evidence supporting its purported use for municipal or
county purposes, the property cannot be considered used for county or municipal
purposes. Murphree v. City of Mobile, 16 So. 544, 544–45 (Ala. 1894). In
Murphree, the Alabama Supreme Court found that a piece of land owned by a city
was not exempt under the predecessor to section 6-10-10 because the city never
designated the land for its purported purpose—a public burial ground—and, despite
owning the property for over twenty-five years, no body had been buried there nor
was the property recognized as a burial ground. Id. In making its decision, the
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Alabama Supreme Court found it unnecessary to consider conflicting testimony
regarding the suitability of the property for burial purposes or how long it would
take for the city to need to expand its current cemetery. See id. at 545. “The question
is whether, under the statute, the property was exempt at the time of the levy of the
execution.” Id.Here, the Authority purchased the West Tract in 1994, and states that the
property is held “for expansion of the [Landfill] if needed. The expansion has been
discussed, but has not been needed to date.” Thus, like the property at issue in
Murphree and unlike the property at issue in Russell & Johnson, the West Tract is
not undergoing a temporary period of non-use, but instead has been sitting unused
for over twenty-five years. However, unlike a county or a municipality, which can
assign various uses to the property it owns, the Authority exists and operates for a
specific statutory purpose, and the Authority’s ability to acquire, use, and dispose of
real property is restricted by that statutory purpose and grant of authority. See, e.g.,
Ala. Code §§ 11-89A-1, 11-89A-8(a)(5), (8), (12).
This issue brings us back to Hamrick I, where the Alabama Supreme Court
considered whether property owned by municipal housing authorities was used for
a municipal purpose. See 447 So. 2d at 1296–98. Focusing on the statutory language
authorizing municipal housing authorities, the Alabama Supreme Court concluded
that “[t]he whole tenor of the Housing Authorities Law thus indicates a legislative
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finding that the use of property for the purposes set out in that Law is public use.”
Id. at 1297. Because there was no dispute that the authorities “use[d] any of their
property in a manner other than as allowed by statute,” the court found that “public
housing projects are a ‘public use’ within the meaning of the municipal exemption”
for housing authority property. Id.Hamrick I thus seems to suggest that the West Tract is used for a public
purpose because the Authority is statutorily restricted from doing anything with the
property other than hold it for future use in connection with the Authority’s solid
waste disposal operations. We are concerned, however, that applying Hamrick I in
this context may extend its rule beyond where Alabama law would otherwise go.
First, the properties at issue in Hamrick I were being used, not lying fallow for a
significant period of time like the West Tract and the property at issue in Murphree.
Although Murphree could be distinguished because it dealt with a municipality, not
a public corporation, the statutory scheme governing housing authorities differs in
significant ways from the statutory scheme applicable to solid waste authorities, and,
therefore, it may be inappropriate to apply Hamrick I to public corporations other
than housing authorities. For example, applying Hamrick I to all public corporations
could neuter section 6-10-10’s “use” requirement and reduce consideration under
that statute to solely its “belonging to” requirement. Simply put, we have not
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discerned controlling Alabama legal authority on how to apply section 6-10-10’s
“use” requirement to solid waste disposal authorities.
3. Common law exemption from execution
In its order, the district court noted that section 6-10-10 is the codification of
the “longstanding principle” in Alabama law that property used for public purposes
is exempt from execution and garnishment. As noted in our discussion above,
section 6-10-10 applies only to property belonging to municipalities or counties that
is used for public purposes. On appeal, the parties disagree about whether Alabama
common law provides an additional exemption for the public use of property and, if
so, whether that exemption applies to property owned by individuals or entities other
than municipalities or counties. As discussed below, it appears that Alabama courts
have not directly applied a common law public use exemption for more than a
century and only as it applied to property owned by railroad companies.
To establish a common law public use exemption applicable to property
owned by private corporations, the Authority relies on the following excerpt from
Gardner v. Mobile & N.W.R. Co., 15 So. 271 (Ala. 1894):
As a general rule, the property of all private corporations is as subject
to legal process for the satisfaction of debts as is the property of natural
persons. An exception obtains, however, when the corporation is
created to serve public purposes, charged with public duties, and is in
the exercise of its franchise and in the performance of its duties. Then,
on considerations of public policy, without regard to the nature or
quality of the estate or interest of the corporation, according to the
weight of authority, such property as is necessary to enable it to
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discharge its duties to the public and effectuate the objects of its
incorporation is not subject to execution at law. The only remedy of a
judgment creditor is to obtain the appointment of a receiver, and the
sequestration of its income or earnings.
Id. at 273–74. Gardner, however, seems to reflect a line of Alabama cases that have
not been extended beyond the context of railroad rights of way. See, e.g., Tucker v.
Mobile Infirmary Ass’n, 68 So. 4, 17 (Ala. 1915) (Mayfield, J., dissenting) (“Though
a judgment is rendered against a railway company, yet its franchise or other property
necessary to the operation of its road cannot be sold under execution, because that
would interfere with the public good.” (quoting Fordyce & McKee v. Woman’s
Christian Nat’l Library Ass’n, 96 S.W. 155, 161 (Ark. 1906)); City of Decatur v. S.
Ry. Co., 62 So. 855, 857 (Ala. 1913) (“[W]hat has been said on the subject of
[judicial] sales of a part of a railroad right of way clearly indicates that it has always
been the opinion, if not the decision, of this court that such sales were unwarranted
and against public policy.”).
Moreover, it is unclear whether the common law rule articulated in Gardner
and related cases maintains vitality or whether it has been legislatively abrogated by
the comprehensive statutory scheme in chapter 10 of title 6 of the Alabama Code,
which contains the exemptions to levy and garnishment enacted by the Alabama
legislature. This is particularly important in light of Alabama law’s prohibition on
“engraft[ing] exceptions, which are not found in the statutes.” Elliott v. Navistar,
Inc., 65 So. 3d 379, 384 (Ala. 2010) (quoting Barclay v. Smith, 66 Ala. 230, 232
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(1880)). And while Alabama law requires courts to give a liberal construction to
exemption statutes, see Russell & Johnson, 73 So. at 986, it does not permit courts
to “give the statutes a liberality of construction far beyond their letter and spirit,”
Griffin v. Ayers, 165 So. 593, 596 (Ala. 1936). See also Phillips v. Phillips, 44 So.
391, 392 (Ala. 1907) (noting that courts may not give exemption statutes a liberal
construction that would be “inconsistent with the manifest intention of the
lawmakers”). Accordingly, we are left without clear direction on both the scope of
the rule in Gardner and its continued viability.
This Court may in few and restricted circumstances develop the judicially
created federal common law, see City of Milwaukee v. Illinois, 451 U.S. 304, 312–
14 (1981), but a judicial decision that expands, eliminates, or does something in
between regarding Alabama’s common law public use exemption, as reflected in
Gardner, is ultimately the prerogative of the Alabama Supreme Court. We owe
deference to the Alabama Supreme Court on this issue because only it decides how
to definitively construe its prior precedent. Compare Smith v. United Constr.
Workers, Dist. 50, 122 So. 2d 153, 154 (Ala. 1960) (“We are compelled to follow
the common law on any subject when the same has not been changed by the
legislative branch of our government.”), with Swartz v. U.S. Steel Corp., 304 So. 2d
881, 885–86 (Ala. 1974) (“We therefore conclude that continuing adherence to the
doctrine announced in Smith, supra, is not today required or desirable under stare
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decisis, nor do we feel that we should longer await legislative action to bring our
common law into harmony with the realities of today.”). Moreover, Alabama courts
occupy the best position to determine the relationship between Alabama’s common
law rules and its statutes, such as section 6-10-10. See Ivey v. Wiggins, 159 So. 2d
618, 620 (Ala. 1964) (“Legislative enactments in modification of the common law
should be clear and such as to prevent reasonable doubt as to the legislative intent
and of the limits of such change.”).
4. Certification of these issues to the Alabama Supreme Court is
appropriate
Although the facts of this case involve a single judgment creditor, the legal
principles involved may have broad effects on the citizens of Alabama, their public
corporations, and the companies that do business with them. Neither party disputes
that public corporations perform important functions for the people of Alabama.
Permitting execution against the property of these public corporations may interfere
with those functions. Conversely, insulating property owned by public corporations
from collection efforts might lead to a decrease in those choosing to contract with
Alabama’s public corporations and to higher amounts charged by those who
continue to do so. Or, these risks may already have been anticipated and addressed
in existing contracts. In any event, the answer to how the statutory and common law
exceptions apply—if at all—is one of Alabama law.
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When faced with substantial doubt on a dispositive state law issue, our “better
option is to certify the question to the state supreme court.” In re Mooney, 812 F.3d
1276, 1283 (11th Cir. 2016). Thus, as a matter of federalism and comity, dispositive
issues of Alabama law should be first presented to the Alabama Supreme Court to
decide. See Blue Cross & Blue Shield of Ala., Inc., 116 F.3d at 1413. Indeed,
“[c]ertification of state law issues to state supreme courts is a valuable tool for
promoting the interests of cooperative federalism.” Id.We therefore certify to the Alabama Supreme Court the following questions
under Alabama Rule of Appellate Procedure 18 3:
(1) Can property owned by a solid waste disposal authority “belong[] to” a
county or municipality for purposes of section 6-10-10?
(2) If so, what factors should courts consider when making such a
determination?
(3) If section 6-10-10 can apply to property owned by a solid waste disposal
authority, is such property “used for county or municipal purposes” when
the authority has not used the property but is holding it for a future use?
(4) Does Alabama continue to recognize a common law exemption from
execution for property used for public purposes as described in Gardner v.
Mobile & N.W.R. Co., 15 So. 271 (Ala. 1894)?
(5) If so, does that exemption apply to public corporations like the Authority,
and what standards should courts employ in applying this common law
exemption?
3
Rule 18 permits federal courts to certify questions to the Alabama Supreme Court when
faced with “questions or propositions of law of this State which are determinative of said cause
and . . . there are no clear controlling precedents in the decisions of the Supreme Court of this
State.” Ala. R. App. P. 18(a). The Alabama Supreme Court “may answer” these certified
questions by written opinion. Id.23
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Our phrasing of these questions “is intended only as a guide.” United States
v. Clarke, 780 F.3d 1131, 1133 (11th Cir. 2015). We do not mean to restrict the
Alabama Supreme Court’s consideration of the issues or its scope of inquiry. See
Blue Cross & Blue Shield of Ala., 116 F.3d at 1414. The Alabama Supreme Court
may, as it perceives them, restate the issues and modify the manner in which the
answers are given. Id. “[I]f we have overlooked or mischaracterized any state law
issues or inartfully stated any of the questions we have posed, we hope the Alabama
Supreme Court will feel free to make the necessary corrections.” Spain v. Brown &
Williamson Tobacco Corp., 230 F.3d 1300, 1312 (11th Cir. 2000). Finally, should
the Alabama Supreme Court exercise its discretion to answer these questions, its
response will be “conclusive on the issue[s] certified.” Edwards v. Kia Motors of
Am., Inc., 554 F.3d 943, 945 (11th Cir. 2009).
III. CONCLUSION
For the foregoing reasons, we defer our decision in this case until the Alabama
Supreme Court has had the opportunity to consider our certified questions and
determine whether to exercise its discretion in answering them. The entire record of
this case, including the parties’ briefs, is transmitted to the Alabama Supreme Court.
QUESTIONS CERTIFIED.
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