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02/06/2018 09:41:50 AM
Honorable D. Scott Mitchell
Clerk of the Court
VS.
STATE OF ALABAMA
APPELLEE
M. Virginia Buck
Attorney for Appellant
13112 Martin Road Spur
Northport, AL 35473
bucklaw@charter.net
(205) 752-6773
STATEMENT REGARDING ORAL ARGUMENT
i
TABLE OF CONTENTS
Table of Contents........................................ii
Table of Authorities.....................................iv
Statement of Facts........................................7
Standard of Review........................................9
ARGUMENT.................................................14
ii
D. ALA. CODE §13A-6-81, AS APPLIED IN THIS CASE,
IS UNCONSTITUTIONAL UNDER THE RATIONAL BASIS TEST....51
Conclusion...............................................65
Certificate of Service...................................65
Appendix..................................................a
iii
TABLE OF AUTHORITIES
Cases
1568 Montgomery Highway, Inc. v. City of Hoover,
45 So.3d 319 (Ala. 2010) ...................... 9, 51, 52, 53
Bracewell v. State,
401 So.2d 123 (Ala. 1979) ................................ 19
Ex parte Bertram,
884 So.2d 889 (Ala. 2003) ................................ 22
Ex parte Jackson,
625 So.2d 425 (Ala. 1992) ................................ 18
Ex parte Jarrett,
89 So.3d 730 (Ala. 2011) ................................. 26
Ex parte Key,
890 So.2d 1056 (Ala. 2003) ................................ 9
F.C. v. State,
742 So.2d 200 (Ala. Crim. App. 1999) ..................... 26
Flanigan’s Enterprises, Inc. of Georgia, et al v. City of
Sandy Springs, Georgia,
831 F.3d 1342 (11th Cir. 2016) ........... 34, 35, 36, 52, 55
Flanigan’s Enterprises, Inc. of Georgia, et al v. City of
Sandy Springs, Georgia,
864 F.3d 1258 (11th Cir. March 14, 2017) ................. 36
Hankins v. State,
989 So.2d 610 (Ala. Crim. App. 2007) ................. 21, 23
Herring v. State,
100 So.3d 616 (Ala. Crim. App. 2011) ..................... 47
In re Opinion of the Justices,
100 So.2d 681 (Ala. 1958) ................................ 23
Ivery v. State,
686 So.2d 495 (Ala. Crim. App. 1996) ..................... 21
Katz v. U.S.,
389 U.S. 347 (1967) ...................................... 41
Latta v. Otter,
771 F.3d 456 (9th Cir. 2014) ............................. 33
Lawrence v. Texas,
539 U.S. 558 (2003) .. 2, 11, 28, 29, 30, 31, 32, 33, 34, 35,
iv
38, 39, 41, 42, 43, 44, 51
Little v. Consolidated Pub. Co.,
83 So.3d 517 (Ala. Civ. App. 2011) ....................... 53
Louisville & N.R. Co. v. Western Union Telegraph Co.,
71 So. 118 (Ala. 1915) ................................... 20
Murray v. State,
922 So.2d 961 (2005) ..................................... 24
Obergefell v. Hodges,
135 S.Ct. 2584 (2015) .... 28, 32, 34, 35, 36, 41, 52, 53, 55
Parks v. State,
565 So.2d 1265 (Ala. Crim. App. 1990) .................... 37
Paschal v. State,
388 S.W.3d 429 (Ark. 2012) ....................... 44, 45, 46
Petty v. State,
414 So.2d 182 Ala. Crim. App. 1982) ...................... 27
Pinigis v. Regions Bank,
977 So.2d 446 (Ala. 2007) ................................ 21
Reliable Consultants, Inc. v. Earle,
517 F.3d 738 (5th Cir. 2008) ......................... 33, 52
Sanders v. State,
854 So.2d 143 (Ala. Crim. App. 2002) ..... 11, 25, 26, 27, 28
Sell v. United States,
539 U.S. 166 (2003) ...................................... 43
State v. C.M.,
746 So.2d 410 (Ala. Crim. App. 1999) ..................... 60
State v. Clinkenbeard,
123 P.3d 872 (Wash. App. 2005) ................... 54, 55, 56
State v. Mole,
994 N.E.2d 482 (Ohio Ct. App. 2013) ...... 57, 58, 59, 62, 63
Stoner v. State,
418 So.2d 171 (Ala. Crim. App. 1982) ..................... 20
Tennyson v. State,
101 So.3d 1256 (Ala. Crim. App. 2012) ................ 22, 23
U.S. v. Windsor,
133 S.Ct. 2675 (2013) ... 11, 28, 31, 32, 34, 35, 36, 41, 52,
53, 55
v
United States v. Johnston,
75 M.J. 563 (N.M. Ct. Crim. App. 2016) ........... 37, 38, 39
Vlandis v. Kline,
412 U.S. 441 (1973) ...................................... 50
W.B.B. v. H.M.S.,
141 So.3d 1062 (Ala. Civ. App. 2013) ..................... 21
Washington v. Glucksberg,
521 U.S. 702 (1997) ...................................... 32
Williams v. Attorney General,
378 F.3d 1232 (11th Cir. 2004) ............... 33, 34, 35, 52
Williams v. State,
565 So.2d 282 (Ala. Crim. App. 1990) ..................... 20
Witt v. Department of Air Force,
527 F.3d 806 (9th Cir. 2008) ...................... 42, 43, 44
Statutes
Act 2010-497 ............................................. 16
Act 2016-354 ............................................. 19
Ala. Code §13A-6-70 ...................................... 37
Ala. Code §13A-6-80 .......... 16, 18, 24, 49, 50, 51, 60, 61
Ala. Code §13A-6-81 . 16, 18, 24, 28, 29, 36, 41, 46, 47, 49,
50, 51, 53, 60, 61
Ala. Code §13A-6-83 ...................................... 17
Ala. Code §16–24–1 ....................................... 17
Ala. Code §16-24B-3 ...................................... 18
Ala. Code §36–26–100 ..................................... 18
Constitutional Provisions
Ala. Const. Art. XIV, Section 256 ........................ 47
U.S. Const. amend. XIV, §1 ............................... 29
vi
STATEMENT OF THE CASE
1
On July 6, 2017 the Trial Court consolidated case
Prosecution. (C.86).
(C.91, 166). The Motion pointed out that the Circuit Court
2
Also on August 14, 2017, Parker filed a Notice of
a guilty plea the next day. The Motion informed the Court
unconstitutional.
CC-16-123 charged,
(C.50, R.1-2).
3
County, Alabama, being a school employee, engage in
deviant sexual intercourse with a student, to wit:
W.L.A., who was under the age of nineteen (19) at the
time the offense occurred, in violation of section
13A-6-81 of the Code of Alabama.”
(C.131, R.10-11).
(R.6-7).
177:
(R.14).
4
The Trial Court reiterated its earlier denial of the
(C.108, 179). The appeal was timely filed since the Notice
post-trial motions.
5
STATEMENT OF THE ISSUES
6
STATEMENT OF FACTS
21). W.L.A., who was born in October 1996, would have been
1 http://pickensacademy.org
7
(C.10, 50-52, Supp. 19). This relationship lasted from
in July 1998 and would have been 16 year old when the
(C.10, 50-52).
8
STANDARD OF REVIEW
9
SUMMARY OF THE ARGUMENT
schools.
10
Because the statute under which Parker was indicted was
the affirmative.
conduct with two young men who were of the age of consent
11
scrutiny or intermediate scrutiny because it is not
intermediate scrutiny.
12
Finally, Ala. Code §13A-6-81, as defined by former
13
ARGUMENT
the statute under which she was indicted was not made
States Constitution.
14
I. THE TRIAL COURT WAS WITHOUT JURISDICTION TO ACCEPT
PARKER’S GUILTY PLEAS BECAUSE THE STATUTE UNDER WHICH
SHE WAS INDICTED WAS INAPPLICABLE TO HER CONDUCT AT
THE TIME OF ITS COMMISSION
15
of Parker’s conduct. Parker was indicted under Ala. Code
appendix.
16
Ala. Code §13A-6-83, which is section 3 of Act 2010-
3
The Teacher Tenure Act and the Fair Dismissal Act were
later repealed and replaced by the Students First Act of
2011, codified at Ala. Code §16-24C-1, et. seq.
17
the Fair Dismissal Act, “employee” is defined in former
18
enrolled or attending classes in a licensed or
accredited public, private, or church school that
offers instruction in grades K-12, regardless of
whether school is in session.”
(emphasis added).
The new changes became effective May 11, 2016 when the
177, Parker was indicted in June 2016 for sexual acts with
19
1982)(statue of limitations which existed at time of
case”).
20
Pinigis v. Regions Bank, 977 So.2d 446, 452 (Ala.
See also Ivery v. State, 686 So.2d 495 (Ala. Crim. App.
21
Ex parte Bertram, 884 So.2d 889, 890 (Ala. 2003)(quoting
Tennyson at 1261-1262.
22
Likewise, in the present case, the fact that the
23
All of the applicable rules of statutory construction
guilty pleas. Nor has she yet moved to withdraw her guilty
4
Parker would urge this Court to reach the merits of this
issue on appeal rather than requiring that this injustice
be corrected through a subsequent Rule 32 proceeding, which
would unnecessarily add one to two more years to the
process. Every day that Parker sits in Julia Tutwiler
prison is a day that her young son is without his mother.
24
defect which this Court can entertain for the first time on
appeal.
25
claim is jurisdictional, see, e.g., Ex parte Casey,
852 So.2d 175 (Ala. 2002), it is not subject to the
two-year limitations period set forth in Rule 32.2(c),
Ala. R. Crim. P. Sanders cites United States v.
Fowler, 198 F.3d 808 (11th Cir. 1999), in support of
his contention that he could not be indicted for
violating the Alabama statute prohibiting possession
of a pistol by a person convicted of a crime of
violence.
…
Based on our review of Fowler and Sanders’s allegation
set out in his Rule 32 petition, this Court must
remand this cause for an evidentiary hearing.”
26
Crim. App. 1982)(trial court was without jurisdiction to
accept guilty plea for attempted robbery when that was not
commission).
prior to May 11, 2016 when the Act was amended to make it
27
Court feels are not established by the Record, this Court
Texas, 539 U.S. 558 (2003), U.S. v. Windsor, 133 S.Ct. 2675
28
survive this stringent level of scrutiny. However, even if
29
the Due Process Clause of the Fourteenth Amendment to the
Id.
505 U.S. 833, 850 (1992)). The Court pointed out, “In all
30
“The petitioners are entitled to respect for their
private lives. The State cannot demean their existence
or control their destiny by making their private
sexual conduct a crime. Their right to liberty under
the Due Process Clause gives them the full right to
engage in their conduct without intervention of the
government. ‘It is a promise of the Constitution that
there is a realm of personal liberty which the
government may not enter.’ Casey,6 supra, at 847, 112
S.Ct. 2791. The Texas statute furthers no legitimate
state interest which can justify its intrusion into
the personal and private life of the individual.”
that even though the Act did not criminalize any conduct,
6
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S.
833 (1992)
31
Similarly, in Obergefell v. Hodges, 135 S.Ct. 2584
32
constitutional right to sexual privacy. In Reliable
See also Latta v. Otter, 771 F.3d 456, 466 (9th Cir.
33
constitutionality of a statute banning the sale of sexual
Williams IV at 1238.
vacated and reh’g en banc granted, 864 F.3d 1258, the Court
34
noted that in Windsor, the Court alluded to a right to
2602).
35
Appellants are free to petition the court to reconsider our
await the decision of the full Court, which has not yet
36
The present case involves private consensual sexual
part,
added).
37
woman he believed was 17 years old8 were exchanges between
8 It turned out the girl was actually only 14, though there
seemed to be no dispute that for purposes of the particular
offense in question, it was only relevant what age he
believed the girl was.
38
conduct indecent, and therefore criminal, must account for
that the case had “all three of the factors comprising the
570.
privately between Parker and two young men who were of the
570.
39
There has never been any suggestion that the sexual
conduct which occurred between Parker and the two young men
40
the young men’s homes, and a nearby public cemetery. (C.10,
41
C. ALA. CODE §13A-6-81, AS APPLIED IN THIS CASE, CANNOT
SURVIVE HEIGHTENED SCRUTINY
applicable.
42
Second, the Ninth Circuit noted that “the cases on
43
infringes on rights recognized by Lawrence, “[T]he
Id. at 819.
44
is whether the statute, as applied in this case,
infringes on Paschal’s fundamental right to engage in
private, consensual, noncommercial acts of sexual
intimacy with an adult. We hold that it does.”
Paschal at 435.
45
not the least restrictive method available to carry out the
it is unconstitutional.” Id.
fundamental right:
9
As noted above in Witt, the test adopted by the Ninth
Circuit for determining the constitutionality of statutes
infringing on the right to private, consensual sexual
intimacy is that “the government must advance an important
governmental interest, the intrusion must significantly
further that interest, and the intrusion must be necessary
to further that interest.”
46
challenged action applying strict scrutiny.” Price–
Cornelison v. Brooks, 524 F.3d 1103, 1109 (10th Cir.
2008)(citations omitted). Under the strict-scrutiny
analysis, a statute that infringes upon a fundamental
right is presumed to be unconstitutional, and the
State bears the burden “to prove that the
[infringement] ‘furthers a compelling interest and is
narrowly tailored to achieve that interest.’” Citizens
United v. Federal Election Comm’n, 558 U.S. 310, ––––,
130 S.Ct. 876, 898, 175 L.Ed.2d 753 (2010)(quoting
Federal Election Comm’n v. Wisconsin Right to Life,
Inc., 551 U.S. 449, 464, 127 S.Ct. 2652, 168 L.Ed.2d
329 (2007)).”
2011)(emphasis added).
47
enrolled in private school. Accordingly, whatever interest
48
by a school and the young people under their authority as
49
capacity as a school employee.” However, the statute which
that Parker had authority over either young man during the
50
For these reasons §13A-6-81, as defined by former §13A-
51
Fifth Circuit’s opinion in Reliable Consultants, discussed
52
Little v. Consolidated Pub. Co., 83 So.3d 517 (Ala. Civ.
not controlling.
53
There are jurisdictions which have upheld statutes
student who had been riding his school bus for several
years. The evidence showed that while the two did not
begin having sex until the student was 18, the romantic
The court first found that the rational basis test was
The Court noted that under the rational basis test, “The
54
defendant challenging the constitutionality of a statute
case.” Id.
55
infringing on private, consensual sexual conduct under
Lawrence.
noted that because the state had a duty under its state
school employee, and the young men she was involved with
56
happened to be a school employee and anyone who happened to
represented that she was 18, but who was actually 14. The
apply:
57
‘The rational-basis test involves a two-step
analysis. We must first identify a valid state
interest. Second, we must determine whether the method
or means by which the state has chosen to advance that
interest is rational.’”
Id. at 485.
58
prohibit such relationships with other minors not under the
concluded,
59
students, the statute’s broad criminalization of all sexual
Process Clause.
1999):
60
State v. C.M., 746 So.2d 410, 414 (Ala. Crim. App.
1993)(emphasis added).
61
Windsor, and Obergefell – the statute is subject to strict
62
The equal protection problems with the statute in the
school employee and almost all minors, since nearly all 16,
63
employee in question even have contact with the student in
spring break and has sex with a 18 year old senior from
conduct.
64
CONCLUSION
CERTIFICATE OF SERVICE
e-filing at docketroom@ago.state.al.us.
65
APPENDIX
ATTACHMENT A
a
APPENDIX
ATTACHMENT B
ACT 2010-497
2010 Alabama Laws Act 2010-497 (H.B. 38)
Act 2010–497
H.B. No. 38
Enrolled, An Act, Relating to crimes and offenses; to provide for the crimes of a school employee engaging in a
sex act, deviant sexual intercourse, or having sexual contact with a student; to provide penalties; and in connection
therewith would have as its purpose or effect the requirement of a new or increased expenditure of local funds
within the meaning of Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05
of the Official Recompilation of the Constitution of Alabama of 1901, as amended.
Section 1. (a) A person commits the crime of a school employee engaging in a sex act or deviant sexual intercourse
with a student under the age of 19 years if he or she is a school employee and engages in a sex act or deviant sexual
intercourse with a student, regardless of whether the student is male or female. Consent is not a defense to a charge
under this section.
(b) As used in this section, “sex act” means sexual intercourse with any penetration, however slight; emission is not
required.
(c) As used in this section, “deviant sexual intercourse” means any act of sexual gratification between persons not
married to each other involving the sex organs of one person and the mouth or anus of another.
(d) The crime of a school employee engaging in a sex act or deviant sexual intercourse with a student is a Class B
felony.
Section 2. (a) A person commits the crime of a school employee having sexual contact with a student under the age
of 19 years if he or she is a school employee and engaging in sexual contact with a student, regardless of whether the
student is male or female. Consent is not a defense to a charge under this section.
(b) As used in this section, “sexual contact” means any touching of the sexual or other intimate parts of a student,
done for the purpose of gratifying the sexual desire of either party. The term includes soliciting or harassing a
student to perform a sex act.
(c) The crime of a school employee having sexual contact with a student is a Class A misdemeanor.
Section 3. A school employee charged with the crime of engaging in a sex act or deviant sexual intercourse with a
student or the crime of having sexual contact with a student may be placed on paid administrative leave while the
charge is adjudicated. Upon the adjudication of the charge, further disciplinary action may be taken in accordance
with the Teacher Tenure Act, Section 16–24–1, et seq., the Teacher Accountability Act, Section 16–24B–1, et seq.,
or the Fair Dismissal Act, Section 36–26–100, et seq., whichever is applicable.
Section 4. For purposes of this act, “school employee” includes a teacher, school administrator, student teacher,
safety or resource officer, coach, and other school employee.
Section 5. Although this bill would have as its purpose or effect the requirement of a new or increased expenditure
of local funds, the bill is excluded from further requirements and application under Amendment 621, now appearing
as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, because the
1
bill defines a new crime or amends the definition of an existing crime.
Section 6. This act shall become effective on the first day of the third month following its passage and approval by
the Governor, or its otherwise becoming law.
2
APPENDIX
ATTACHMENT C
TITLE: Children, criminal penalties for distrib. of harmful material to minor by school employee, out of
court statements by minors allowed under certain conditions, certain individuals with certain credentials
auth. to work in child care facilities, criminal penalties for sexual abuse by foster parents, Sec. 38-7-20 added;
Secs. 13A-12-200.5, 15-25-31, 26-14-3, 38-7-2 am’d.
VERSION: Adopted
May 11, 2016
Collins
SUMMARY: An Act, Relating to children; to add Section 13A-6-82.1, to the Code of Alabama 1975, to create the
crime of a school employee transmitting obscene material to a student; to amend 13A-6-80, 13A-6-81, 13A-6-82,
Code of Alabama 1975, relating to sexual conduct by school employees, to further provide for the crimes of sexual
contact or soliciting a sex act with a student; to amend Section 15-25-31, Code of Alabama 1975, to provide for the
admissibility of certain out-of-court statements by children under the age of 12 years in certain child abuse and
neglect criminal proceedings; to amend Section 26-14-3, Code of Alabama 1975, to reference a specific definition of
child abuse and neglect in mandatory child abuse and neglect reporting provisions; to amend Section 38-7-2, Code
of Alabama 1975, to revise the definition of day care center; to add Section 38-7-20 to the Code of Alabama 1975,
to authorize an individual under 19 years of age with certain credentials to work in a day care center and to count in
the staff-child ratio; to provide specific criminal penalties for sexual offenses by foster parents against foster
children; to amend Section 15-20A-5, Code of Alabama 1975, as last amended by Act 2015-463, to specify that a
conviction of a sex offense by a foster parent would subject a defendant to sex offender registration; and in
connection therewith would have as its purpose or effect the requirement of a new or increased expenditure of local
funds within the meaning of Amendment of the Constitution of Alabama of 1901, now appearing as Section 111.05
of the Official Recompilation of the Constitution of Alabama of 1901, as amended
TEXT:
ACT #2016-354
HB238
172700-4
By Representative Collins
RFD: Judiciary
ENROLLED,
An Act, Relating to children; to add Section 13A-6-82.1, to the Code of Alabama 1975, to create the crime of a
school employee transmitting obscene material to a student; to amend 13A-6-80, 13A-6-81, 13A-6-82, Code of
Alabama 1975, relating to sexual conduct by school employees, to further provide for the crimes of sexual contact or
soliciting a sex act with a student; to amend Section 15-25-31, Code of Alabama 1975, to provide for the
admissibility of certain out-of-court statements by children under the age of 12 years in certain child abuse and
neglect criminal proceedings; to amend Section 26-14-3, Code of Alabama 1975, to reference a specific definition of
child abuse and neglect in mandatory child abuse and neglect reporting provisions; to amend Section 38-7-2, Code
of Alabama 1975, to revise the definition of day care center; to add Section 38-7-20 to the Code of Alabama 1975,
to authorize an individual under 19 years of age with certain credentials to work in a day care center and to count in
the staff-child ratio; to provide specific criminal penalties for sexual offenses by foster parents against foster
children; to amend Section 15-20A-5, Code of Alabama 1975, as last amended by Act 2015-463, to specify that a
conviction of a sex offense by a foster parent would subject a defendant to sex offender registration; and in
1
connection therewith would have as its purpose or effect the requirement of a new or increased expenditure of local
funds within the meaning of Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section
111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended.
Section 1. Section 13A-6-82.1 is added to the Code of Alabama 1975, to read as follows:
§13A-6-82.1.
(a) A person commits the crime of school employee distributing obscene material to a student if he or she is a school
employee and distributes or transmits, by any means, obscene matter that depicts sexual intercourse, sexual
excitement, masturbation, breast nudity, genital nudity, or other sexual conduct to a student.
(b) A school employe employee distributing obscene material to a student is a Class A misdemeanor.
Section 2. Sections 13A-6-80, 13A-6-81, 13A-6-82, Section 15-20A-5, Code of Alabama 1975, as last amended by
Act 2015-463, 15-25-31, 26-14-3, and 38-7-2, Code of Alabama 1975, is amended to read as follows:
Ӥ13A-6-80.
”(a) For purposes of this article, school employee includes a teacher, school administrator, student teacher, safety or
resource officer, coach, and volunteer adult volunteer in a position of authority or any other school employee
who has contact with a student in his or her official capacity as a school employee.
(b) For purposes of this article, a “student” is defined as any person under the age of 19 years enrolled or
attending classes in a licensed or accredited public, private, or church school that offers instruction in grades
K-12, regardless of whether school is in session.
Ӥ13A-6-81.
”(a) A person commits the crime of a school employee engaging in a sex act or deviant sexual intercourse with a
student under the age of 19 years under the age of 19 years if he or she is a school employee and engages in a sex
act sexual intercourse as defined by Section 13A-6-60(1) or deviant sexual intercourse as defined by 13A-6-60(2)
with a student, regardless of whether the student is male or female. Consent is not a defense to a charge under this
section.
”(b) As used in this section, sex act means sexual intercourse with any penetration, however slight; emission is not
required.
”(c) As used in this section, deviant sexual intercourse means any act of sexual gratification between persons not
married to each other involving the sex organs of one person and the mouth or anus of another.
”(d) (b) The crime of a school employee engaging in a sex act or deviant sexual intercourse with a student is a Class
B felony.
Ӥ13A-6-82.
”(a) A person commits the crime of a school employee having sexual contact with a student under the age of 19
years under the age of 19 years if he or she is a school employee and engaging engages in sexual contact, as
defined by Section 13A-6-60(3), with a student, regardless of whether the student is male or female. Consent is not
a defense to a charge under this section. The crime of a school employee having sexual contact with a student is
a Class C felony.
”(b) A person commits the crime of a school employee soliciting a sex act with a student under the age of 19
2
years if he or she is a school employee and solicits, persuades, encourages, harasses, or entices a student to
engage in a sex act including, but not limited to, sexual intercourse, as defined by Section 13A-6-30(1), deviate
sexual intercourse, as defined by Section 13A-6-30(2), or sexual contact, as defined by Section 13A-6-30(3).
The crime of soliciting a student to perform a sex act is a Class A misdemeanor.
”(b) As used in this section, sexual contact means any touching of the sexual or other intimate parts of a student,
done for the purpose of gratifying the sexual desire of either party. The term includes soliciting or harassing a
student to perform a sex act.
”(c) The crime of a school employee having sexual contact with a student is a Class A misdemeanor.