1. No category

1 Of 16
2 Of 16
3 Of 16
SUPREME COURT OF ALABAMA
Donald Curtis Casey, et al.
)
)
)
)
)
)
)
)
)
RELATORS,
SENATOR DEL MARSH
RESPONDENT.
APPEAL #: 1140676
CASE
#: CV-2014-430
(Montgomery County, Al)
REMONSTRANCE TO STRIKE RESPONDENT'S MOTION TO DISMISS
Relators, 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; Kenneth L. Freeman, all “people” acknowledged in the Preamble of the
Alabama Constitution, standing thereon, HOLDING ALL SECURED RIGHTS APPLICABLE
THERETO DO by remonstrance, move this Court to strike RESPONDENT'S MOTION TO DISMISS.
INTRODUCTION
In 2011 Senator Del Marsh introduced SJR82, as sole sponsor facilitating passage thereof. The result –
the creation of the "Revision Commission".
SJR82 established a time line wherein the Commission would examine and recommend to the
Legislature specific Articles of the Constitution for revision. To wit:
(1) In 2011:
Article XII, Private Corporations. (approved by the voters in 2012)
Article XIII, Banking. (approved by the voters in 2012)
Remove unconstitutional language throughout the Constitution.
(2) In 2012:
Article III, Distribution of Powers.
Article IV, Legislative Department.
Article IX, Representation.
(3) In 2013:
Article I, Declaration of Rights.
4 Of 16
Article V, Executive Department.
Article XIV, Education
(4) In 2014:
Article VII, Impeachments.
Article X, Exemptions.
Article XVII, Miscellaneous.
(e) The following articles shall be excluded from consideration by the commission due to a previous
revision of the article or because revision is not considered needed:
(1) Article II, State Boundaries, which are determined by Congress.
(2) Article VI, Judicial Article, which was revised in 1973.
(3) Article VIII, Suffrage and Elections, which was revised in 1996.
(4) Article XV, Militia.
(5) Article XVI, Oath of Office.
(6) Article XVIII, Mode of Amending the Constitution.
(f) Article XI Taxation is excluded from the consideration by the commission at this time and not
subject to the timetable established by this resolution.
On July 2nd, 2014 Relators presented information in the nature of a Quo Warranto to the 15th, Judicial
Circuit of Montgomery County Alabama.
On March 6th, 2015 said Quo Warranto was dismissed and a subsequent appeal was taken by the
Relators to the Alabama Supreme Court.
On March 30th, 2015 Respondent filed a MOTION TO DISMISS.
FACTS
Respondent's MOTION TO DISMISS lays out a time line in items 1 through 6 (pages 1 and 2). Item 7
(page 2) concludes with the following quote from 65 Am Jur 2d Quo Warranto § 53 which purports to
render the Relators' action moot.
“A quo warranto action against a public official, … is rendered moot when … his
or her term of office expires.”
OBJECTION!
The foregoing was never asserted in written or oral arguments and violates the general rule that no new
issues may be raised on appeal.
5 Of 16
When the quote is read in its entirety it is readily discernible that Am Jur 2d Quo Warranto § 53 is not
applicable to the issue before this Court and was not part of the proceedings at trial.
“A quo warranto action against a public official, challenging the official's right to
continue serving, is rendered moot when the challenged official relinquishes his
or her position or his or her term of office expires.”
The Relators' quo warranto never challenged Senator Marsh's right to continue serving. It is rather an
effort by the “people” to simply query: “Where did Sen. Marsh get his authority to revise the Alabama
Constitution without first placing before the “people” as stipulated in Section 286 of the Alabama
Constitution the question of “convention or no convention”?
The Relators affirm that this issue is a non- justiciable controversy only requiring a simple answer to a
simple question.
While the Relators have never challenged Senator Marsh's “right to continue serving” the following is
stipulated and deemed applicable due to Senator Marsh's non-response. See the Relators'
MEMORANDUM IN SUPPORT OF MOTION TO STRIKE.
§ 4.30 RELIEF
“The prime relief available to the applicant who brings quo warranto is the ouster of
the respondent from the office, franchise or privilege which he had usurped. A
judgment ousting the respondent from office does not depend upon the Relators'
right to the office. In quo warranto, guilty respondents can not only be ousted, but
can be prohibited from further practice of the activity.”1
1
The Practice of EXTRAORDINARY REMEDIES HABEAS CORPUS AND THE OTHER COMMON LAW WRITS
Volume II By CHESTER JAMES ANTIEAU Emeritus Professor Constitutional Law Georgetown University 1987
§ 4.30 RELIEF
In quo warranto, guilty defendants can not only be ousted, but can be prohibited from further practice of the activity.4
footnote 4 White v. State ex rel. Fowler (1955) 262 Ala 694, 81 So 2d 267 (practice as a chiropractor); Hawaii Rev.
6 Of 16
Under our institutions sovereignty resides in or with the people and may be
exercised in the manner they have provided by the constitution. SEE Hawthorn v
People, 109 Ill 302. Thus, constitutional provisions derive their force from the
people themselves, not from the legislature, since, under the American theory of
government, all power is inherent in the people. SEE Ware v Hylton, 3 US 199, 1
L Ed 568; Collier v Gray, 116 Fla 845, 157 So 40; Edwards v Lesueur, 132 Mo
410, 33 SW 1130; Wright v Hart, 182 NY 330, 75 NE 404 (ovrld on other grounds
Klein v Maravelas 219 NY 383, 114 NE 809); Ex parte Farnsworth, 61 Tex Crim
353, 135 SW 538. The “people” stand in a beneficiary jurisdictional position which
is affirmed in Article I Section 2 of the Alabama Constitution. Public Officers are
trustees holding fiduciary responsibilities and obligations toward the people. See
the following excerpted from the Relator's MEMORANDUM IN SUPPORT OF
MOTION TO STRIKE.
PUBLIC OFFICERS
New Jersey Supreme Court Decisions 1955 Jersey City v. Hague 18 N.J. 584
http://law.justia.com/cases/new-jersey/supreme-court/1955/18-n-j-584-0.html
Public officers hold positions of public trust, and stand in a fiduciary
relationship to the people whom they have been appointed to serve.” State v.
Markt,384 A.2d 162, 166 (N.J.Super.Ct.App .Div.1978)(citing Driscoll v.
Burlington-Bristol Bridge Co., 8 N.J. 433, 474 (1952)). “They must serve the
public with the highest fidelity.” Id. “The citizen is not at the mercy of his
servants holding positions of public trust nor is he helpless to secure relief
from their machinations except through the medium of the ballot, the pressure
of public opinion or criminal prosecution.” Driscoll, 8 N.J. at 476. “Whenever
the acts of public officers fail to conform to the standard imposed by the
fiduciary relationship in which they stand to the public, relief will be available
in the civil courts.” Id Marjac, LLC v. Trenk Slip Copy, 2006 WL 3751395
Stats. § 659-6.
7 Of 16
(D.N.J.)
63C Am.Jur.2d, Public Officers and Employees, §247 emphasis added
“As expressed otherwise, the powers delegated to a public officer are held in
trust for the people and are to be exercised in behalf of the government or of
all citizens who may need the intervention of the officer. [1] Furthermore,
the view has been expressed that all public officers, within whatever branch
and whatever level of government, and whatever be their private vocations,
are trustees of the people, and accordingly labor under every disability and
prohibition imposed by law upon trustees relative to the making of personal
financial gain from a discharge of their trusts. [2] That is, a public officer
occupies a fiduciary relationship to the political entity on whose behalf he or
she serves. [3] and owes a fiduciary duty to the public. [4] It has been said
that the fiduciary responsibilities of a public officer cannot be less than those
of a private individual. [5] Furthermore, it has been stated that any
enterprise undertaken by the public official which tends to weaken public
confidence and undermine the sense of security for individual rights is
against public policy.[6]”
[1] State ex rel. Nagle v Sullivan, 98 Mont 425, 40 P2d 995, 99
ALR 321; Jersey City v Hague, 18 NJ 584, 115 A2d 8.
[2] Georgia Dep't of Human Resources v Sistrunk, 249 Ga 543, 291
SE2d 524. A public official is held in public trust. Madlener v
Finley (1st Dist) 161 Ill App 3d 796, 113 Ill Dec 712, 515 NE2d 697,
app gr 117 Ill Dec 226, 520 NE2d 387 and revd on other grounds
128 Ill 2d 147, 131 Ill Dec 145, 538 NE2d 520.
[3] Chicago Park Dist. v Kenroy, Inc., 78 Ill 2d 555, 37 Ill Dec 291,
402 NE2d 181, appeal after remand (1st Dist) 107 Ill App 3d 222, 63
Ill Dec 134, 437 NE2d 783.
[4] United States v Holzer (CA7 Ill) 816 F2d 304 and vacated,
remanded on other grounds 484 US 807, 98 L Ed 2d 18, 108 S Ct
53, on remand (CA7 Ill) 840 F2d 1343, cert den 486 US 1035, 100
L Ed 2d 608, 108 S Ct 2022 and (criticized on other grounds by
United States v Osser (CA3 Pa) 864 F2d 1056) and (superseded by
statute on other grounds as stated in United States v Little (CA5
Miss) 889 F2d 1367) and (among conflicting authorities on other
grounds noted in United States v Boylan (CA1 Mass) 898 F2d 230,
29 Fed Rules Evid Serv 1223).
[5] Chicago ex rel. Cohen v Keane, 64 Ill 2d 559, 2 Ill Dec 285, 357
NE2d 452, later proceeding (1st Dist) 105 Ill App 3d 298, 61 Ill Dec
8 Of 16
172, 434 NE2d 325.
[6] Indiana State Ethics Comm'n v Nelson (Ind App) 656 NE2d
1172, reh gr (Ind App) 659 NE2d 260, reh den (Jan 24, 1996) and
transfer den (May 28, 1996).
Asplund v Hannett, 31 NM 641, 249 P 1074, 58 ALR 573.
“The Constitution is the fundamental law of the state, in opposition to which
any other law or any direction or order must be inoperative and void”.
Therefore the Relators on behalf of themselves and the people have and do assert the right to inquire
“by what authority”.
The Respondents' MEMORANDUM IN SUPPORT OF MOTION TO DISMISS submitted to the trial
Court recognized and acknowledge twice on page 12 that a Quo Warranto inquires by what right
official authority is exercised:
“[A writ of quo warranto] inquires by what right the person proceeded against
exercises official authority...”
“A writ of quo warranto to answer whether Senator Marsh lawfully holds the
office of Senator and whether he rightfully exercises his duties and powers.”
And twice on page 14 of said document Respondent again affirms the “people's” right of inquiry via a
quo warranto:
“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...”
The Trial Court, in oral arguments (see lines 8 through 12 on page 15) was made aware of the
aforementioned.
When immunity as asserted by Respondent is accepted by the Trial Court, the secured rights affirmed
9 Of 16
by Article I Section 2
“That all political power is inherent in the people, and all free governments are
founded on their authority, and instituted for their benefit;”
and Article I Section 25 are no longer protected.
“...to apply to those invested with the power of government for redress of
grievances or other purposes, by petition, address, or remonstrance.”
Further all parties were noticed in the Relator's “INFORMATION FROM THE RELATORS ON
BEHALF OF THE PEOPLE OF ALABAMA SEEKING A WRIT OF QUO WARRANTO” that:
Where the respondent admits that he is holding and exercising the powers and duties of
an office, it devolves upon him the burden of showing by what authority he holds the
office, and that he is in the rightful exercise of its duties and powers. State ex rel. Knox
v. Dillard, 196 Ala. 539, 73 So. 56 1916 Ala. LEXIS 456 (1916)
See also the Relator's MEMORANDUM IN SUPPORT OF MOTION TO STRIKE for the
following regarding the duties of a Respondent:
State ex rel. Bruce v Kiesling (1994, Fla) 632 So 2d 601, 19 FLW S 106. emphasis added
“The common-law remedy of quo warranto is employed either to determine
the right of an individual to hold public office or to challenge a public
officer's attempt to exercise some right or privilege derived from the state”.
Citizens Utilities Co. v Superior Court of Alameda County, 56 Cal App 3d 399, 128 Cal Rptr
582. Emphasis added
Primarily, the remedy of quo warranto belongs to the state, in its sovereign
capacity, to protect the interests of the people as a whole and guard the public
welfare. It is a preventative remedy addressed to preventing a continuing
exercise of an authority unlawfully asserted rather than to correcting what
has already been done under that authority.
State, ex rel. Knox v. Dillard, et al. SUPREME COURT OF ALABAMA 196 ALS.
539; 72 So. 56; 1916 Ala. LEXIS 457
10 Of 16
“In quo warranto proper it is sufficient to allege that the respondent is usurping
the office or franchise, whereupon the burden or duty rests on him to show his
right to hold, or to exercise;....” emphasis added
As the Relators stipulated in their MEMORANDUM IN SUPPORT OF MOTION TO STRIKE an
inquiry in the nature of a quo warranto can not raise the issue of immunity.
Missouri Court of Appeals Easter District Division Two STATE OF
MISSOURI EX INF. ROBERT McCULLOCH, Respondent. vs. ROBERT
EDWARDS, Appellant No. ED94409 Appeal from the Circuit Court of St.
Louis Count 09Sl-CC04615
“B. Immunity In his first point relied on, Edwards claims the trial
court erred in declaring he forfeited his public office and in
removing him from his position on the Board because his actions
are protected by official and legislative immunity. We disagree.
Official immunity is a common law doctrine that shields public
officials from "liability for alleged acts of negligence committed
during the course of their official duties for the performance of
discretionary acts." Southers v. City of Farmington, 263 S.W.3d
603, 610 (Mo. banc 2008). The case at bar is not a suit in tort for
damages for an act of negligence. Instead this case stems from a
petition in quo warranto. Quo warranto is an action at law to
protect the public against usurpation of power. State ex inf.
Dalton v. Mosley, 286 S.W.2d 721, 730 (Mo. 1956)” emphasis
added
“Moreover, official immunity is only available to a public official
when he exercises legitimate authority in a discretionary manner.
Southers, 263 S.W.3d at 610. The trial court here found Edwards
was not exercising his legitimate authority, but instead exercised
authority that he did not lawfully possess. Acts which exceed a
public official's legitimate authority are not discretionary and are
not protected by official immunity. Id.” emphasis added
“With respect to Edwards' claim of legislative immunity, he fails
to provide any legal authority for applying legislative immunity to
a suit in quo warranto. Furthermore, legislative immunity is
available only where a legislator exercised his legislative
11 Of 16
functions in a legitimate manner. Bogan v. Scott-Harris, 523 U.S.
44, 54 (1998). Based upon the evidence presented at trial, the trial
court found that that Edwards "willfully and wrongfully usurped
and executed [his] duties" as a Board member. Edwards exercised
his legislative functions in an illegitimate manner by unilaterally
exercising the powers of the full Board without a quorum and
majority vote. Accordingly, Edwards may not rely on the doctrine
of legislative immunity. Point one is denied.” emphasis added
“A public official may be removed from office pursuant to a
statutorily prescribed method or via the common law doctrine
of quo warranto. Mosley, 286 S.W.2d at 730. Section 531.010,
which codifies the common law writ of quo warranto, provides in
part:” emphasis added
“In case any person shall usurp, intrude into or unlawfully
hold or execute any office or franchise, the attorney
general of the state, or any circuit or prosecuting attorney
of the county in which the action is commenced, shall
exhibit to the circuit court, or other court having
concurrent jurisdiction therewith in civil cases, an
information in the nature of a quo warranto . . . .”
“The Supreme Court of Missouri has held that actions in quo
warranto are the proper remedy to oust an office holder for
misconduct, malfeasance, or other cause. State of Missouri ex inf.
Saunders v. Burgess, 264 S.W.2d 339, 340 (Mo. 1954).”
“In this case, substantial evidence was presented to the trial court to
support a finding that Edwards forfeited his office by engaging in
misconduct, specifically by intentionally exercising powers he did
not lawfully possess.” emphasis added
Ignorance of the aforementioned is no excuse for the Relators stipulated in their MEMORANDUM IN
SUPPORT OF MOTION TO STRIKE that:
See SUPREME COURT OF ALABAMA Ex parte Sarah Janie
Hicks;(In re: Sarah Janie Hicks v. State of Alabama) 1110620
12 Of 16
2014.AL.0000105 April 18, 2014
“A person is presumed to know the law and is expected to conform
his conduct to it. See § 13A-2-6(b), Ala. Code 1975 ("A person is
not relieved of criminal liability for conduct because he engages in
that conduct under a mistaken belief that it does not, as a matter of
law, constitute an offense ...."); Ex parte Tuscaloosa Cnty., 770 So.
2d 602, 605 (Ala. 2000) ("Mistake of law, however, is not a
defense to a crime."); White v. Birmingham Post Co., 235 Ala.
278, 279, 178 So. 449, 450 (1938) ("All persons are presumed to
know the law."); Gordon v. State, 52 Ala. 308, 310 (1875)
("Ignorance of the law is never an excuse, whether a party is
charged civilly or criminally.").” emphasis added
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).
This principle that the misrepresentation must be one of fact and
not one of law is founded in the long-standing policy discussed in
Dixon County v. Field, 111 U.S. 83, 92-93 (1884):
"All parties are equally bound to know the law; and a certificate
reciting the actual facts, and that thereby the bonds were
conformable to the law, when, judicially speaking, they are not,
will not make them so, nor can it work an estoppel upon the
county to claim the protection of the law. Otherwise it would
always be in the power of a municipal body, to which power
was denied, to usurp the forbidden authority, by declaring that
its assumption was within the law. This would be the clear
exercise of legislative power, and would suppose such corporate
bodies to be superior to the law itself. And the estoppel does not
arise, except upon matters of fact which the corporate officers had
authority by law to determine and to certify." emphasis added
“Other cases, some more recent, have focused on three reasons
why, for purposes of applying the doctrine of equitable estoppel,
the misrepresentation must be as to the facts and not as to the law.
First, all persons are presumed to know the law. See Moore v.
13 Of 16
Brown, 52 U.S. (11 How.) 414, 428 (1850) ("[A]s a general
principle, every one is chargeable with a knowledge of the law in
civil as well as criminal cases. This, however, is a legal
presumption which every one knows has no real foundation in fact,
and has been adopted because it is necessary as a general rule for
the purposes of justice."); Brown v. Richardson, 395 F. Supp. 185,
190 (D.C. Pa. 1975) ("By operation of law, parties dealing with the
government are charged with knowledge of, and are bound by,
statutes and lawfully promulgated regulations, ... and reliance upon
incorrect information received from a government agent or
employee cannot alter the terms of a statute regardless of the
economic hardship which may result."); and Reform Party of
Alabama v. Bennett, 18 F. Supp. 2d 1342, 1354 (M.D. Ala. 1998)
("In this case, where the law is clear, the Plaintiffs, like all other
political parties and their candidates, are charged with knowledge
of the law and are required to comply with its terms.").”
ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 20102011 2100048 2011.AL.0000060 February 11, 2011 TOWN O F
WESTOVER v. JAMES BYNUM AND J&F ENTERPRISES, LLC,
D/B/A
“Notice of such an ordinance is required to be taken by anyone
upon whom it has a binding effect, analogous to the rule that
everyone is presumed to know the law. Id. § 15:25. 'All persons
upon whom valid ordinances are binding are charged with
constructive notice of those ordinances, and a defendant cannot
show that he or she did not know of the existence of the
ordinance.” ' emphasis added
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).
"All persons or entities who conduct activities in Alabama are presumed to
know its laws. Everyone is presumed to know the law. Ignorance of the
law is no excuse. Citizens are deemed to have constructive knowledge of
14 Of 16
the law." (Emphasis added.) Hereinafter, this charge will be referred to as
"the no-excuse charge."
A moot ruling by the Supreme Court of this appeal, silences, for now, the question whether the
“people” have the authority to question their trustees regarding the authority for their actions and allow
the usurpation of not only the Relators right to vote for a delegate of their choice to a convention but
also the right of the public to enjoy the exercise of the same secured right.
Summarizing the affect of a moot ruling - If the Legislature is allowed to revise, at its will and
discretion, the document that sets out the purpose and organizational structure of the three branches of
government, there will soon be one dominant branch (Legislature) dictating not only to the other
branches (Executive and Judicial) but to the people as well.
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 6th, day of April 2015, I transmitted via United States Mail the foregoing
with the Clerk of the Court for the Alabama Supreme and copies of the same to:
Jeffery H. Long, Assistant Attorney General 501 Washington Av. Montgomery, Alabama 36130-0152
Judge William Shashy, 100 S Lawrence St | Montgomery, AL 36104
15 Of 16
_____________________________________
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 are 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:__________________
16 Of 16