1. law, govt and politics

IN THE SUPREME COURT OF ALABAMA
CASE NUMBER 1140676
Donald Curtis Casey, et al. Appellant Relators
v.
Senator Del Marsh, Appellee Respondent
Appeal from the Circuit Court of Montgomery County, Alabama
03-CV-2014-00043000
___________________________________________________________________________________
Relator's Appeal Brief
Donald Curtis Casey
1129, 1st Av
Pleasant Grove, Alabama 35127
Phone: 205 542 1730
Email: [email protected]
There is no reason this document should not be made available to the public
on an on line electronic database.
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STATEMENT REGARDING ORAL ARGUMENT
Relators do not request oral argument.
2 Of 26
TABLE OF CONTENTS
PAGE
STATEMENT REGARDING ORAL ARGUMENT................................................................................2
STATEMENT OF JURISDICTION..........................................................................................................4
TABLE OF AUTHORITIES......................................................................................................................5
STATEMENT OF THE CASE...................................................................................................................7
STATEMENT OF THE ISSUES..............................................................................................................12
STATEMENT OF FACTS.......................................................................................................................13
STATEMENT OF THE STANDARD OF REVIEW...............................................................................15
SUMMARY OF THE ARGUMENT.......................................................................................................17
ARGUMENT...........................................................................................................................................18
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STATEMENT OF JURISDICTION
This Court has jurisdiction over this matter pursuant to:
Alabama Constitution Article VI § 140
Alabama Code § 12-2-7 (2)
Alabama Code § 6-6-591
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TABLE OF AUTHORITIES
CASES
ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2010-2011
2100048 2011.AL.0000060 February 11, 2011 TOWN OF WESTOVER v.
JAMES BYNUM AND J&F ENTERPRISES, LLC, D/B/A; SUPREME COURT
OF ALABAMA OCTOBER TERM, 2008-2009 No. 1061727, 2009.AL.0000057
January 30, 2009 MOBILE GAS SERVICE CORPORATION v. ROSA
ROBINSON, INDIVIDUALLY AND AS ADMINISTRATRIX AND
PERSONAL REPRESENTATIVE OF THE ESTATE OF HARRIETT
ROBINSON, DECEASED, AND AS MOTHER AND NEXT FRIEND OF
DAVID MCMEANS, KELVIN MCMEANS, AND HARRIETT JOHNSON
Appeal from Mobile Circuit Court, (CV-05-3587).
Alabama Supreme Court in State, ex rel. Weatherly, et al. v. Birmingham Water
Works Co. 185 Ala. 388; 64 So. 23; 1913 Ala. LEXIS 667
Baker v. State ex rel. Green, 222 Ala. 467, 133 So. 291
BIRMINGHAM BAR ASS'N v. PHILLIPS & MARSH et al. 6 Div. 604.
SUPREME COURT OF ALABAMA 239 Ala. 650; 196 So. 725; 1940 Ala.
LEXIS 414
PAGE
15
21, 23
19
15, 22
Frost v. Clements, 153 Ala. 654, 45 So. 203
19
GUY HUNT, ETC., ET AL. v. DECATUR CITY BOARD OF EDUCATION, ET
AL. AL.2270 628 So. 2D 393 August 27, 1993
21
Leigh v. State, 69 ALA. 261, 266 (1881)
Moore v. Brown, 52 U.S. (11 How.) 414, 428 (1850)
P. C. WHITE v. STATE ex rel. Conrad M. FOWLER, Solicitor No. 7 Div. 243
Supreme Court of Alabama 262 Ala. 694; 81 So. 2d 267; 1955 Ala. LEXIS 524
10, 23
15
16, 19
U.S. Supreme Court Stone v. Mississippi, 101 U.S. 814 (1879)
20
SUPREME COURT OF ALABAMA Ex parte Sarah Janie Hicks;(In re: Sarah
Janie Hicks v. State of Alabama) 1110620 2014.AL.0000105 April 18, 2014
15
Roberts v. Bailey, 228 Ala. 222, 153 So. 432
19
STATE ex rel. CHAMBERS v. BATES. 1 Div. 942. SUPREME COURT OF
ALABAMA 233 Ala. 251; 171 So. 370; 1936 Ala. LEXIS 436
State, ex rel. Knox v. Dillard, et al. SUPREME COURT OF ALABAMA 196 Ala.
539; 72 So. 56; 1916 Ala. LEXIS 457
State v. Manley 441 So.2d 864 (1983)
15, 19
15
9, 18, 21
Sharp v. State, 217 Ala. 265, 115 So. 392
19
Water Works and Sewer Board of the City of Prichard v. The Board of Water and
Sewer Commissioners of the City of Mobile d/b/a Mobile Area Water and Sewer
Service System No. 1120630 Supreme Court of Alabama September 13, 2013,
21
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CONSTITUTIONAL PROVISIONS
Article XVIII § 286
Article IV § 56
12, 13, 18
19, 23
ALABAMA CODE
6-6-591
6 Of 26
4, 20, 23
STATEMENT OF THE CASE
1.
Donald Curtis Casey, Herb Whittington, William G. Anthony, Franklin R. Dillman, Marion
Franklin Patrick, Steve Phillips, Lou Campomenosi, Patricia S. Godwin,Cecil Godwin, Jr., Phillip Joe
Hartline, Ed Bowman, and Kenneth L. Freeman, Relators, presented on February 4th, 2014 a private
Quo Warranto1. The Quo Warranto sought to utilize the wisdom found in Matthew 5:25 to resolve,
without the expenditure of public resources (trial), the question regarding the Legislature's authority2 to
revise the Alabama Constitution without first placing before the people of Alabama the question of
“convention or no convention”3.
2.
3.
Senator Marsh, Respondent did not respond.
The Relators on February 20th, 2014 noticed Senator Marsh with a statement of “Facts”4. The
statement of “Facts” noticed Senator Marsh that he did not respond to the query posed in the Quo
Warranto.
4.
The Relators on July 2nd, 2014 filed in the FIFTEENTH JUDICIAL CIRCUIT COURT OF
ALABAMA MONTGOMERY COUNTY “INFORMATION FROM THE RELATORS ON BEHALF
OF THE PEOPLE OF ALABAMA SEEKING A WRIT OF QUO WARRATNO” 5.
5.
Senator Marsh through Jeffery Long, Assistant Attorney General filed on August 7th, 2014 a
“MOTION FOR A MORE DEFINITE STATEMENT”6 and a BRIEF IN SUPPORT OF MOTION FOR
A MORE DEFINITE STATEMENT7. The conclusion on pages 46 through 47 in the BRIEF asserts
1
2
3
4
5
6
7
See 03CV201400043000-ROA-V1-B.pdf pages 22 through 27
IBID Page 25
Alabama Constitution Article XVIII § 286
See 03CV201400043000-ROA-V1-B.pdf pages 28 through 31
IBID pages 6 through 21
IBID pages 41 through 42
IBID pages 43 through 48
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that the Relators are Plaintiffs, and that as such the action brought “does not include a proper prayer for
relief nor does the Complaint state any legal injury for which Plaintiffs' are entitled to relief.”
6.
The Honorable William A. Shashy, on August 8th, 20148 granted Assistant Attorney General
Long's motion and set a hearing for August 14th, 2014.
7.
The Relators submitted, on August 13th, 2014 an “OBJECTION TO “MOTION FOR A MORE
DEFINITE SATEMENT”9 and a “PETITION TO CLARIFY THE INFORMATION SUBMITTED BY
THE RELATORS”10. The former objected to the transposing nature of the Assistant Attorney General's
“MOTION FOR A MORE DEFINITE STATEMENT”. To wit:
Relators to PLAINTIFFS
Respondent to DEFENDANT
Information to Complaint
INFORMATION FROM THE RELATORS ON BEHALF OF THE PEOPLE OF
ALABAMA SEEKING A WRIT OF QUO WARRANTO to a justiciable controversy.
8.
The latter noted in item 1711 that Senator Marsh, Respondent failed to respond to the query (Quo
Warranto) to provide the authoritative instrument “wherein the Alabama Legislature is granted the right
and / or authority to revise the Constitution without the vote of the people wherein delegates are elected
to a convention”.
9.
August 14th, 2014 a hearing12 was held before the Honorable William A. Shashy in which there
was obviously confusion regarding the nature of a Quo Warranto. Mr. Casey explained that “A quo
warranto is a writ – an extraordinary writ, different from mandamus, demanding from the authority, an
officer of the state – whatever that office might be – to come forward with his authority to act13”. Judge
8
9
10
11
12
13
See 03CV201400043000-ROA-V1-B.pdf page 50
IBID page 51
IBID page 54
IBID page 56
03CV201400043000-ROA-V2-B.pdf pages 1 through 6
IBID page 4
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Shashy ruled14 that the Relators had provided a “definite statement” and therefore a response must be
brought forth.
10.
Franklin Robert Dillman, Relator et. al. on August 14th, 2014 submitted a NEEDFUL
CLARIFICATION. To wit:
“Del Marsh, Senator is to bring forth the instrument wherein the
Alabama Legislature is authorized to propose to the people any
amendment to the Alabama Constitution which would result in, after
an affirming vote of the people a major alteration, or revision thereof
beyond that which a reasonable individual would deem short and
simple.”
State v. Manley 441 So.2d 864 (1983)
“Thus, the purpose of the legislative mode is to bring about
amendments which are few and simple and independent; and on the
other hand, that of the mode through Conventions is to revise the
entire Constitution, with a view to propose either a new one, or, as the
greater includes the less, to propose specific and particular
amendments to it”. “......if a revision is or may be desired, the mode
by a Convention only is appropriate, or, as we expect to show,
permissible.”
11.
Senator Marsh by and through Assistant Attorney General Long filed, on August 22nd, 2014 a
MOTION TO DISMISS15 and a MEMORANDUM IN SUPPORT OF MOTION TO DISMISS16. The
14 IBID pages 5 through 6
15 See 03CV201400043000-ROA-V1-B.pdf page 69 through 70
16 See 03CV201400043000-ROA-V1-B.pdf page 71 through 91
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assertion made by Senator Marsh by and through Assistant Attorney General Long's MEMORANDUM
that the “Relators may only use a valid writ of quo warranto to challenge a legislator's right to hold
public office17” is negated by the following statements:
[A writ of quo warranto] inquires by what right the person proceeded
against exercises official authority...” Leigh v. State, 69 ALA. 261, 266
(1881)
“A writ of quo warranto serves to answer whether Senator Marsh lawfully
holds the office of Senator and whether he rightfully exercises his duties
and powers”.18
“A writ of quo warranto may either inquire by what authority a person
holds a public office or by what authority a person exercises official
powers”.
“the Alabama Supreme Court held that a writ of quo warranto “inquires
by what right the person proceeded against exercises official
authority...”19
12.
The aforementioned renders Senator Marsh's immunity from answering a query regarding the
authority authorizing his action null and void.
13.
Judge Shashy, on August 25th, 2014 ordered a hearing set for October 15th, 2014.
14.
The Relators filed on September 22nd, 2014 a PETITION TO STRIKE RESPONDENT'S
17 See 03CV201400043000-ROA-V1-B. pdf page 73
18 IBID page 82
19 IBID page 84
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MOTION TO DISMISS20, MEMORANDUM IN SUPPORT OF MOTION TO STRIKE21, PETITION
FOR SUMMARY JUDGMENT22 and a MEMORANDUM IN SUPPORT OF PETITION FOR
SUMMARY JUDGMENT23
15.
The Relators MEMORANDUM IN SUPPORT OF MOTION TO STRIKE noticed all parties of
a fiduciary24 responsibility which an individual assumes on entry into public office25; and that if, the
people are required to know26 the law - no less can be expected of a four term Senator27.
16.
During the October 15th, 2014 proceeding Mr. Casey stated that Senator Marsh “is revising the
Constitution through the amendment process without putting the vote or the question before the people
of convention or no convention”. To which the COURT replied - “He can't do that”. The proceeding
concluded with Judge Shashy's statement - “All right. Well, I will look at all of this, and I'll get y'all
something out”.
17.
The Court dismissed the matter with prejudice on March 6th, 2015. This appeal to the Alabama
Supreme Court followed on March 18th, 2015.
20
21
22
23
24
25
26
27
IBID page 93 through 94
IBID page 116 through 146
IBID page 147 through 148
IBID page 149 through 161
See 03CV201400043000-ROA-V1-B. pdf page 116
IBID page 122
IBID page 125 through 127
IBID paragraph 15 page 125
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STATEMENT OF THE ISSUES
Several broad issues arise from the action brought by the people in this appeal.
1. Are trustees of the public well being immune from queries (Quo
Warranto) posed by the people to ascertain the authority that enables their
action?
2. Did the trial court transpose the query (Quo Warranto) from “authority to
act” into a query seeking “the motivation for a legislative act”28?
3. Does claiming the cloak of governmental immunity by an Official, a
trustee, when a query (Quo Warranto) demands him to bring forth the
authority for his action render the American experiment in limited selfgovernment null and void?
4. Was the private right of the Relators as well as the right of the public, as
specified in Article XVIII § 286 of the Alabama Constitution to determine
the question of “convention” or “no convention” and subsequent election of
delegates if a convention was approved, violated?
5. Does the broad prosecutorial discretion granted to the Attorney General,
an Officer sworn to uphold the Constitution, include threatening people that
pose such questions with incarceration and fines29?
28 See 03CV201400043000-ROA-V1-B.pdf see page 200 “ORDER”
29 IBID page 81
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STATEMENT OF FACTS
1.
Senator Del Marsh created and was the sole sponsor of resolution SJR82 “ESTABLISHING A
CONSTITUTIONAL REVISION COMMISSION”. Said resolution negates the requirements set out
in Article XVIII § 286. emphasis added
2.
Failing to ascertain the authority authorizing Senator Marsh's action; a query posed (private Quo
Warranto) on February 4th, 2014 the Relators submitted on July 2nd, 2014 “INFORMATION FROM
THE RELATORS ON BEHALF OF THE PEOPLE OF ALABAMA SEEKING A WRIT OF QUO
WARRANTO.30
3.
Two proceedings were held, August 14th, 2014 and October 15th, 2014 before the Honorable
William Shashy. Senator Marsh was not present.
4.
A claim of legislative immunity was asserted by Senator Del Marsh through Jeffery Long,
Assistant Attorney General.
5.
Judge Shashy Ordered, on March 6th, 2015 that the “matter is dismissed with prejudice
inasmuch as Senator Del Marsh has absolute legislative immunity. This Court finds that the Plaintiffs
are contesting actions taken by Del Marsh in his legislative capacity”.31
6.
The Relators, all people of Alabama, acting in their sovereign capacity are not “Plaintiffs”
having repeatedly and consistently objected32 to all efforts wherein, by conversion, if not rebutted
would change the nature of the query (Quo Warranto) “by what authority” does Senator Del Marsh act
in order to revise the Alabama Constitution without first placing before the people of Alabama the
question of convention or no convention? - to that of a justiciable controversy.
30 See 03CV201400043000-ROA-V1-B.pdf page 6
31 See 03CV201400043000-ROA-V1-B.pdf page 199
32 See 03CV201400043000-ROA-V1-B.pdf page 51 through 52
IBID with particular attention to page 116 of the MEMORANDUM IN SUPPORT OF MOTION TO STRIKE
03CV201400043000-ROA-V2-B.pdf hearing transcript page 1 through 6
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7.
Said Order states that legislative immunity can only be asserted wherein “the basis of the
prosecution is a legislative act or the motivation for a legislative act”.
8.
When queried via a Quo Warranto said requirement of response falls upon the Respondent to
answer “by what authority”.
9.
Senator Marsh, a four term Senator, who is required to know the law, did not respond.
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STATEMENT OF THE STANDARD OF REVIEW
1.
The standard of review, de novo is herein applicable for the Relators, (people) having granted to
the State through the Alabama Constitution Article VI § 140 the authority to demand and know from an
Officer the Constitutional and concurring statutory source authorizing their action. BIRMINGHAM
BAR ASS'N v. PHILLIPS & MARSH et al. 6 Div. 604. SUPREME COURT OF ALABAMA 239 Ala.
650; 196 So. 725; 1940 Ala. LEXIS 414
2.
Said Officer's, requirement to know the law can be no less than that of the people. SUPREME
COURT OF ALABAMA Ex parte Sarah Janie Hicks;(In re: Sarah Janie Hicks v. State of Alabama)
1110620 2014.AL.0000105 April 18, 2014; SUPREME COURT OF ALABAMA SPECIAL TERM,
2007 No. 1050299 2007.AL.0000545 September 21, 2007 EX PARTE STATE OF ALABAMA (In re:
James Craig Boutwell v. State of Alabama) (Covington Circuit Court, CV-04-48; Court of Civil
Appeals, 2040477); Moore v. Brown, 52 U.S. (11 How.) 414, 428 (1850); ALABAMA COURT OF
CIVIL APPEALS OCTOBER TERM, 2010-2011 2100048 2011.AL.0000060 February 11, 2011
TOWN OF WESTOVER v. JAMES BYNUM AND J&F ENTERPRISES, LLC, D/B/A; SUPREME
COURT OF ALABAMA OCTOBER TERM, 2008-2009 No. 1061727, 2009.AL.0000057 January 30,
2009 MOBILE GAS SERVICE CORPORATION v. ROSA ROBINSON, INDIVIDUALLY AND AS
ADMINISTRATRIX AND PERSONAL REPRESENTATIVE OF THE ESTATE OF HARRIETT
ROBINSON, DECEASED, AND AS MOTHER AND NEXT FRIEND OF DAVID MCMEANS,
KELVIN MCMEANS, AND HARRIETT JOHNSON Appeal from Mobile Circuit Court, (CV-053587).
3.
In an action (Quo Warranto) brought by the State the requirement to respond is not optional.
State, ex rel. Knox v. Dillard, et al. SUPREME COURT OF ALABAMA 196 Ala. 539; 72 So. 56; 1916
Ala. LEXIS 457; STATE ex rel. CHAMBERS v. BATES. 1 Div. 942. SUPREME COURT OF
15 Of 26
ALABAMA 233 Ala. 251; 171 So. 370; 1936 Ala. LEXIS 436; P. C. WHITE v. STATE ex rel. Conrad
M. FOWLER, Solicitor No. 7 Div. 243 Supreme Court of Alabama 262 Ala. 694; 81 So. 2d 267; 1955
Ala. LEXIS 524.
4.
It being only reasonable, therefore, that the people, the Relators as a matter of law do have and
hold all applicable attributes to said Quo Warranto. See Article I § 2 of the Alabama Constitution
wherein the people are the source of power.
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SUMMARY OF THE ARGUMENT
1.
Senator Del Marsh, Respondent, a four term Senatorial Office holder failed to respond to the
query (Quo Warranto) to bring forth the authority to revise the Alabama Constitution without first
placing before “all the qualified electors of the state”, the “question of convention or no convention”.
2.
A cloak of immunity is claimed by and through Jeffery Long, Assistant Attorney General
wherein Senator Marsh is immune from producing authorization for his action.
3.
Said claims fail in that it is relevant wherein motivation is the basis for suit. Action brought by
the Relators is not a suit, it is an Information in the Nature of a Quo Warranto.
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ARGUMENT
1.
All efforts at converting the status of the Relators, people of Alabama that would assign their
position to that of Plaintiffs wherein a justiciable controversy exists has been consistently objected to
and rebutted33.
2.
Immunity from suit wherein the basis for suit is motivation as asserted by Jeffery Long,
Assistant Attorney General and accepted as valid as so Ordered34 by the trial court is moot. For the
action brought by the Relators is an Information in the Nature of a Quo Warranto.
3.
Immunity is valid when an Officer of the State observes, adheres to and follows the duties,
obligations and restrictions specified in the Constitution and concurring statute. Here the obligation
laid out in Article XVIII § 286 of the Alabama Constitution is clear. The question of “convention or no
convention” is not optional – it must be placed before the voters of this State.
4.
Said mandated requirement has been adjudicated. To wit:
State v. Manley 441 So.2d 864 (1983)
"The constitution can be amended in but two ways, either by the people,
who originally framed it, or in the mode prescribed by the instrument
itself.... We entertain no doubt, that, to change the constitution in any
other mode than by a convention, every requisition which is demanded
by the instrument itself, must be observed, and the omission of any one is
fatal to the amendment."
“The constitution is the supreme and paramount law. The mode by which
amendments are to be made under it is clearly defined. It has been said
33 See 03CV201400043000-ROA-V2-B.pdf proceeding August 14th, 2014 page 1 through 6 and 03CV201400043000ROA-V1-B.pdf written objection page 51 and 52
34 03CV201400043000-ROA-V1-B.pdf page 199 and 200
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that certain acts are to be done certain requisitions are to be observed,
before a change can be effected. But to what purpose are these acts
required, or these requisitions enjoined, if the Legislature or any other
department of the government, can dispense with them. To do so, would
be to violate the instrument which they are sworn to support....”
emphasis added
5.
A breached duty, voluntarily sworn to is, as noted in Article IV, § 56 of the Alabama
Constitution a violation of Senator Marsh's Oath of Office and therefore the cloak of governmental
immunity cannot exist.
6.
As such the Respondent, Senator Del Marsh, not the Assistant Attorney General, is to respond.
To wit:
STATE ex rel. CHAMBERS v. BATES. 1 Div. 942. SUPREME COURT OF ALABAMA 233
Ala. 251; 171 So. 370; 1936 Ala. LEXIS 436; Roberts v. Bailey, 228 Ala. 222, 153 So. 432;
Baker v. State ex rel. Green, 222 Ala. 467, 133 So. 291; Sharp v. State, 217 Ala. 265, 115 So.
392.”; Frost v. Clements, 153 Ala. 654, 45 So. 20335
“When defendant admits that he was holding an office and
exercising its powers and functions, in a proceeding to remove him
from office, he has the burden to allege and prove that he was in
the rightful exercise of them. Further pleading is not necessary by
plaintiff unless he seeks to show some disqualification for the
office or a forfeiture of it.” emphasis added
P. C. WHITE v. STATE ex rel. Conrad M. FOWLER, Solicitor No. 7 Div. 243 Supreme Court
of Alabama 262 Ala. 694; 81 So. 2d 267; 1955 Ala. LEXIS 524
"When the party holding the burden of proof wholly fails to
adduce evidence to support the cause of action or defense, or
35 IBID page 151
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where the testimony of one's own witnesses, without conflict,
makes out the case of the opposing side, the [***11] court may
direct the verdict by affirmative instruction without hypothesis on
request in writing. In such case there is nothing to argue. The party
may not assail the credibility of his own witnesses in argument.”
7.
The Relators, all people of Alabama, acting in their sovereign capacity (U.S. Supreme Court
Stone v. Mississippi, 101 U.S. 814 (1879)) as affirmed in the Constitutions of the United States and the
republic Alabama with concurring Alabama Code 6-6-591 as stated are not “Plaintiffs” and did so as
stated in the transcript of proceeding of October 15th, 2014 bring Information in the Nature of a Quo
Warranto. To wit:
“THE COURT: Hold on a second. This is brought as a quo warranto --”
“MR. CASEY: Yes.”
“THE COURT: -- to remove him from office?”
“MR. CASEY: The quo warranto is the question. Should he not respond,
the proper order from the Court is to oust. We don't necessarily want Del
Marsh out of office; but if he won't come forward with the authority to act,
which he's required to do, then there is nothing to do but oust him.”36
8.
Said question spoken of by Mr. Casey during the proceedings of October 15th, 201437:
“...Del Marsh could resolve this issue. All he has to do is give us the
chapter and verse of the Constitution that allows the revision of the
Constitution without placing the vote – question of convention or no
convention before the people.”
36 See 03CV201400043000-ROA-V2-B.pdf proceeding page 15 through 16
37 IBID page 16
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9.
The same question (Quo Warranto) was posed in the following written format- Senator Del
Marsh is to bring forth “his authority wherein his effort to revise the Alabama Constitution through an
amendment process without placing “the question of convention or no convention” before all of “the
qualified electors of the state.”38
10.
The lack of authority to revise the Alabama Constitution through an amendment process
without placing “the question of convention or no convention” before all of “the qualified electors of
the state.” was cited39:
a) State v. Manley, 441 So.2d 864, 867 (Ala. 1983)
b) GUY HUNT, ETC., ET AL. v. DECATUR CITY BOARD OF
EDUCATION, ET AL. AL.2270 628 So. 2D 393 August 27, 1993
c) Water Works and Sewer Board of the City of Prichard v. The
Board of Water and Sewer Commissioners of the City of Mobile
d/b/a Mobile Area Water and Sewer Service System No. 1120630
Supreme Court of Alabama September 13, 2013,
11.
The purpose for which the Relators brought the action in ascertaining Senator Marsh's authority
to act is a valid action via a Quo Warranto. To wit:
Alabama Supreme Court in State, ex rel. Weatherly, et al. v. Birmingham
Water Works Co. 185 Ala. 388; 64 So. 23; 1913 Ala. LEXIS 66740
“Looking alone to the language of section 5450, we might
reasonably give to it the construction contended for by respondent,
viz., that "unlawfully exercising" a franchise means exercising it
without authority of law. This would be its strict, and perhaps its
more natural, meaning. But we cannot so view it. Of the scope of
our statutory remedy this court long ago declared that the "system
was manifestly intended to be, and is, a complete one, covering the
38 03CV201400043000-ROA-V1-B.pdf page 149
39 IBID page 159 through 160
40 IBID page 149 through 150
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whole subject, taking the place of the common-law remedy. * * *
Indeed, the statutory system preserves, substantially, the principles
of the common-law remedy, only regulating, as within perfect
legislative competency, by whom, in whose names and behalf,
and by what procedure, public and private rights, which the
common-law information was adequate to redress, should be set
on foot and adjudicated." State v. Elliott, 117 Ala. 172, 23 So. 43.”
emphasis added
BIRMINGHAM BAR ASS'N v. PHILLIPS & MARSH et al. 6 Div. 604.
SUPREME COURT OF ALABAMA 239 Ala. 650; 196 So. 725; 1940
Ala. LEXIS 414 41
“The remedy in nature of quo warranto given to state looks to
sovereign power of state with respect to use or abuse of "franchises,"
which are special privileges, created by its authority, and which
must, as a principle of fundamental public policy, remain subject to
its sovereign action in so far as interest of public or any part thereof
are affected by their usurpation or abuse. Code 1923, § 9932.”
emphasis added
“Where there is breach of duty to public, remedy of quo
warranto is available in name of state, by any member of public
upon a compliance with the statute. Code 1923, § 9929 et seq.”
emphasis added
“[HN3] Quo warranto was a very ancient prerogative writ directed
against him who usurped an office or franchise to inquire [**732] by
what authority he exercised such franchise, etc. 51 C. J. 309, § 2.”
12.
Jeffery Long, Assistant Attorney General affirms that a Quo Warranto is the proper writ to seek
in determining if an action by a governmental official is unlawfully exercised. To wit:
MEMORANDUM IN SUPPORT OF MOTION TO DISMISS
41 IBID page 150 through 151
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“[A writ of quo warranto] inquires by what right the
person proceeded against exercises official authority...”42
Leigh v. State, 69 Ala. 261,266 (1881).
“A writ of quo warranto serves to answer whether
Senator Marsh lawfully holds the office of Senator and
whether he rightfully exercises his duties and powers.”43
“A writ of quo warranto may either inquire by what
authority a person holds a public office or by what
authority a person exercises official powers.”44
“The Alabama Supreme Court held that a writ of quo
warranto "inquires by what right the person proceeded
against exercises official authority...”45
13.
Jeffery Long, Assistant Attorney General asserts that Senator Del Marsh is immune from query
(Quo Warranto) wherein the question posed seeks the Constitutional and concurring Statutory authority
authorizing Senator Marsh's action. Cited for such immunity is the “speech and debate clause” of
Article IV § 56.46 Converting a Quo Warranto into suit where litigants contest a matter “for the purpose
of enforcing a right or seeking a remedy”47, negates the process which merely seeks that which the
Respondent is required to know48.
14.
The general comment of the annotation for Alabama Code 6-6-591 “State, ex rel. Weatherly, et
al. v. Birmingham Water Works Co. SUPREME COURT OF ALABAMA 185 Ala. 388; 64 So. 23;
1913 Ala. LEXIS 667” is instructive as to the purpose of a Quo Warranto. To wit:
"When the remedy by information in the nature of quo warranto has been
42
43
44
45
46
47
48
IBID page 82
IBID
IBID page 84
IBID
IBID page 77
Black's Law Dictionary Fifth edition
03CV201400043000-ROA-V1-B.pdf page 125 paragraph 15
23 Of 26
regulated by legislative enactments, these enactments are regarded by the
courts as in the nature of remedial statutes, to which a strict construction is not
to be applied. In such cases the usual rules of construction of remedial statutes
are held applicable, and the courts will so construe them as to promote and
render effective the remedy sought”. emphasis added
“The language here in question is: "When any person usurps, intrudes into, or
unlawfully holds or exercises * * * any franchise within this state." In view of
the manifest [***27] purpose of the Legislature in the enactment of our several
statutes on this subject, it is not a strained interpretation of the phrase
"unlawfully exercises" to give to it a broader meaning than its prior alternative
"usurps," and to hold that it comprehends the unlawful use or abuse of an
actually existing franchise, and not merely the unauthorized assumption of
one.”--High on Ex. Leg. Rem. § 622. emphasis added (James L.) High 1896 A
Treatise On Extraordinary Legal Remedies, Embracing Mandamus, Quo
Warranto, and Prohibition
“While, under section 5453, you require the defendant, [***53] individual or
corporation, to come in and show by what right or authority he or it holds such
office or exercises such franchise right; and, if he or it cannot show such right
or authority, a judgment of ouster as to such office or franchise is entered”.
emphasis added
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CONCLUSION
Common sense dictates that Officials must know the law and the duties thereof for - without such
knowledge government established to protect “the citizen in the enjoyment of life, liberty and
property”49 cannot exist. Therefore, when a query is made from the beneficiary50 (Relators/people)
regarding the knowledge of the law that obligates and restricts said office holder, his fiduciary51
responsibility, acquired by voluntary oath52 dictates that his response be with all honesty and candor.
Thus, immunity cannot be asserted where the requirement to respond is violated.
49
50
51
52
Alabama Constitution Article I § 35
IBID Article I § 2
03CV201400043000-ROA-V1-B.pdf page 116
IBID page 152
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I, Donald Curtis Casey certify that I have communicated via electronic means this document to all
Relators applicable hereto and they have informed me of their concurrence. If a signed notarized copy
of the aforementioned is required from each Relator an additional amount of time for submission is
requested.
CERTIFICATE OF SERVICE
I hereby certify that on this, the 1st day of June 2015, I submitted the foregoing instrument to the Clerk
of the Court for the Alabama Supreme Court and a copy of the same to:
Jeffery H. Long, Assistant Attorney General 501 Washington Av. Montgomery, Alabama 36130-0152
_____________________________________
Donald Curtis Casey
THE STATE OF ALABAMA ______________________COUNTY
I, ________________________________________ a Notary Public, in and for the State of Alabama
hereby certify that the individual who signed this instrument is known to me, acknowledge before me
on this day, that being informed of the contents of the instrument, have voluntarily executed said
instrument on the day so designated below.
Given under my hand this _____________ day of _____________, A. D. 2015.
Notary Public
Print Name ____________________________Notary Signature________________________
My commission expires:__________________
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