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01-CV-2019-900747.00
205-325-5355
jackie.smith@alacourt.gov
DOCUMENT 1
ELECTRONICALLY FILED
2/14/2019 1:58 PM
01-CV-2019-900747.00
State of Alabama Case Number: CIRCUIT COURT OF
COVER SHEET JEFFERSON COUNTY, ALABAMA
Unified Judicial System
CIRCUIT COURT - CIVIL CASE 01-CV-2019-900747.00
JACQUELINE ANDERSON SMITH, CLERK
(Not For Domestic Relations Cases) Date of Filing: Judge Code:
Form ARCiv-93 Rev. 9/18
02/14/2019
GENERAL INFORMATION
IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA
CITY OF HOMEWOOD, ALABAMA ET AL v. JOHN H. MERRILL ET AL
NATURE OF SUIT: Select primary cause of action, by checking box (check only one) that best characterizes your action:
ATTORNEY CODE:
SAL035 2/14/2019 1:58:27 PM /s/ MEGHAN ANNE SALVATI
Date Signature of Attorney/Party filing this form
Election to Proceed under the Alabama Rules for Expedited Civil Actions: YES NO
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ELECTRONICALLY FILED
2/14/2019 1:58 PM
01-CV-2019-900747.00
CIRCUIT COURT OF
JEFFERSON COUNTY, ALABAMA
JACQUELINE ANDERSON SMITH, CLERK
IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA
COME NOW the Plaintiffs City of Homewood, Alabama (“Homewood”) and James Alan
Owen (“Owen”) (and collectively “Plaintiffs”) and hereby file this complaint for declaratory and
This is an action seeking declaratory and injunctive relief voiding and invalidating the
November 6, 2018 general election concerning the local constitutional amendment related to
Homewood’s efforts to be exempted from the cap on ad valorem taxes under Article XI, § 217 of
the Constitution of Alabama of 1901. In particular, Homewood seeks to have the election declared
void for failure to adhere to the requirements of the enabling legislation and for failing to use a
uniform ballot at each polling place. Homewood further seeks an order requiring the Defendants
Parties
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elector in Jefferson County, Alabama. Owen has an interest in this matter because he is a qualified
Alabama and is sued solely in that capacity and in order to provide full relief.
4. Defendant HON. ALAN L. KING (“Judge King”) is the Probate Judge of Jefferson
County, Alabama, and is sued solely in that capacity and in order to provide full relief. Judge King
5. Defendant KAY E. IVEY (“Ivey”) is the Governor of the State of Alabama, and is
Factual Background
property taxes are effectively capped at 75 mils ($75.00 per $1000 in value) for all municipalities
in Alabama, except for Huntsville, Mountain Brook and Vestavia Hills which are exempted from
this cap. Section 217 is generally referred to as the “Lid Bill” and was added to the Alabama
Constitution in 1978.
7. The City of Homewood, having reached the applicable cap on property taxes almost
two decades ago, recently sought an exemption to § 217 by way of a local constitutional
amendment that would allow the residents of Homewood to vote by referendum on any future
property tax increases without being subject to the cap. In order to enable such an exemption, a
proposed local constitutional amendment was prepared and introduced in the Alabama Legislature
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passed the Alabama House of Representatives unanimously on February 15, 2018 and Act 2018-
9. Section 2 of the enabling legislation provided that “[a]n election upon the proposed
amendment shall be held in accordance with Section 284.01 to the Constitution of Alabama of
1901… and the election laws of this state.” Section 3 of the Act provided that “[t]he appropriate
election official shall assign a ballot number for the proposed constitutional amendment on the
election ballot and shall set forth the following description of the substance or subject matter of
(A true and correct copy of the enabling Act is attached hereto as Exhibit A).
10. On August 24, 2018, Alabama Secretary of State Merrill certified the prescribed
language for the proposed constitutional amendments, including the Homewood local amendment,
to appear on the ballot for the general election to be held on November 6, 2018. There were four
statewide amendments certified, but the Homewood local amendment was the only local
proposed Homewood local amendment was given by proclamation of the Governor and published
once a week for four successive weeks preceding the November 6, 2018 general election in the
Birmingham News.
12. In accordance with § 284.01 to the Constitution of Alabama of 1901, the proposed
constitutional amendment was to be placed on the general election ballot only in Jefferson County
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and would become law if approved by a majority of the qualified voters in both the City of
13. In order to encourage support for the proposed constitutional amendment, the City
of Homewood and the Homewood City Schools undertook an informational campaign designed
to educate voters about the proposed amendment. Because the proposed constitutional amendment
was the only local amendment on the ballot in Jefferson County and Homewood had been told that
it would appear on the ballot as “Local Amendment 1,” supporters of the Homewood amendment
fashioned their campaign around the phrase “Yes On Local One” or “YOLO!” The Homewood
marshalling support for the local constitutional amendment. Significant time, energy, and
14. In the final days leading up to the November 6, 2018 general election, Homewood
learned for the first time that election officials had apparently made the decision to unilaterally
renumber the proposed constitutional amendment on the official ballots used by voters in
Homewood. Instead of being named “Local Amendment 1,” the proposed amendment was
renumbered and renamed as “Local Amendment 2” even though there was only one local
amendment under consideration in Jefferson County. (True and correct copies of the different
15. The decision to assign two different ballot numbers to the proposed constitutional
amendment was an innocent mistake that was motivated by good intentions, but which resulted in
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16. The decision to renumber the proposed constitutional amendment caused a great
deal of voter confusion on the very eve of the election and seriously undermined or vitiated
Homewood’s efforts to educate voters about the proposed amendment. This confusion was
exacerbated by the fact that there were also four statewide constitutional amendments on the
17. In the November 6, 2018 general election, although it was approved by voters in
Homewood, the proposed constitutional amendment narrowly failed to receive the approval of a
majority of the voters in greater Jefferson County. When the votes in Homewood are added to the
votes in the rest of Jefferson County, the amendment lost by only 2565 votes.
18. Section 3 of the enabling Act for the Homewood constitutional amendment
provided that “[t]he appropriate election official shall assign a ballot number for the proposed
constitutional amendment on the election ballot …”. (Emphasis added). This language required
that the proposed constitutional amendment be assigned a single, solitary number when it was
placed on the general election ballot. The last-minute renumbering of the proposed amendment
so that it had one ballot number in parts of Jefferson County and another ballot number in other
parts of Jefferson County violated the unambiguous requirements of the enabling Act. “As a
general proposition, when the statute expressly declares how the ballot shall be prepared,
distributed, marked and identified by the officers charged with such duties and providing that
ballots which do not so conform shall not be counted, a failure of substantial compliance with such
mandatory provision invalidates the ballot.” Walker v. Junior, 24 So.2d 431, 432 (Ala. 1945).
Because the election ballots did not comply with the enabling legislation, the results of the election
must be voided.
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19. The decision to assign two different ballot numbers to the proposed constitutional
amendment also violated Alabama law requiring uniformity of ballots. Ballot uniformity has long
been the public policy and law in Alabama. Section 17-6-23, CODE OF ALABAMA, for example,
provides in pertinent part: “There shall be provided at each polling place at each election at which
public officers are voted for, but one form of ballot for all the candidates for public office.”
(Emphasis added here). Because the proposed constitutional amendment was assigned different
ballot numbers depending on the polling place, the ballots were not uniform and the election must
be voided.
20. The decision to assign two different ballot numbers to the proposed constitutional
22. There exists a real, substantial, and bona fide controversy between the parties
regarding the validity of the November 6, 2018 vote on the proposed constitutional amendment
and the decision to assign two different ballot numbers to the proposed amendment.
23. Pursuant to the Alabama Declaratory Judgment Act, § 6-6-220, et seq., Plaintiffs
request that this Court enter a declaratory judgment finding that: (a) the assignment of two different
ballot numbers to the proposed constitutional amendment was improper and violated Alabama
law; (b) because of the improper assignment of two different ballot numbers to the proposed
constitutional amendment, the November 6, 2018 vote on the proposed amendment is invalid and
void; and (c) because the November 6, 2018 vote on the proposed constitutional amendment is
invalid and void, there should be a special election conducted in order to provide voters with the
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opportunity to consider and vote on the proposed amendment without the improper ballots used in
25. The decision to assign two different ballot numbers for the proposed constitutional
amendment caused harm and injury to Plaintiffs which can only be remedied by the holding of a
special election in order to give voters the opportunity to consider and vote on the proposed
amendment without the confusion caused by the improper ballots used in the November 6, 2018
vote.
26. Plaintiffs request that this Court enter an order directing the Defendants and other
appropriate election officials to schedule a special election in which voters will be permitted to
consider and vote on the proposed amendment with a single assigned ballot number, after
appropriate notice has been given pursuant to § 284.01 to the Constitution of Alabama of 1901.
27. Plaintiffs request such further, additional, and different relief as this Court thinks
appropriate.
OF COUNSEL:
SIROTE & PERMUTT, P.C.
2311 Highland Avenue South
P.O. Box 55727
Birmingham, AL 35255-5727
Tel.: (205) 930-5100
Fax: (205) 930-5101
bragsdale@sirote.com
msalvati@sirote.com
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Kay E. Ivey
Governor of the State of Alabama
State Capitol Building
600 Dexter Avenue
Montgomery, AL 36130
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Exhibit A
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Exhibit B
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