AlaFile E-Notice

03-CV-2019-901622.00
Judge: BROOKE E REID
To: JOHN MARK WHITE
mwhite@whitearnolddowd.com

NOTICE OF ELECTRONIC FILING

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA

BIRMINGHAM AIRPORT AUTHORITY V. ALABAMA ETHICS COMMISSION ET AL

03-CV-2019-901622.00

The following matter was FILED on 7/8/2020 11:01:28 AM

C001 BIRMINGHAM AIRPORT AUTHORITY

RESPONSE TO MOTION TO VACATE OR MODIFY
[Filer: WHITE JOHN MARK]

Notice Date: 7/8/2020 11:01:28 AM

GINA J. ISHMAN
CIRCUIT COURT CLERK
MONTGOMERY COUNTY, ALABAMA
251 S. LAWRENCE STREET
MONTGOMERY, AL, 36104

334-832-1260
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ELECTRONICALLY FILED
7/8/2020 11:01 AM
03-CV-2019-901622.00
CIRCUIT COURT OF
MONTGOMERY COUNTY, ALABAMA
GINA J. ISHMAN, CLERK
IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, ALABAMA

BIRMINGHAM AIRPORT )
AUTHORITY, )
)
Plaintiff, )
)
v. ) Civil Action No. CV-2019-901622
)
ALABAMA ETHICS COMMISSION, )
a State Agency; CHARLES PRICE, )
BEVERLYE N. BRADY, JOHN )
M. PLUNK, JACQUELYN L. STUART, )
and STANTON H. MCDONALD, in their )
official capacities as Commissioners of )
the Alabama Ethics Commission; and )
TOM ALBRITTON, in his official )
capacity as Executive Director of the )
Alabama Ethics Commission, )
)
Defendants. )

PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO ALTER, AMEND

OR VACATE, OR IN THE ALTERNATIVE, A REQUEST FOR
CLARIFICATION

Without meeting the legal standard of Ala. R. Civ. P. 59 to have this Court’s June

11, 2020 Order (Doc. 193, “Order”) altered, amended, or vacated, Defendants attempt to

improperly utilize Rule 59 to ask this Court to alter or amend its Order to include language

that is legally incorrect, contradicts stipulated and undisputed facts in the record, and would

dramatically alter and restrict the Court’s findings as set forth in the Order. This Court

correctly concluded that the funds used to pay employees of Plaintiff Birmingham Airport

Authority (“Authority”) are “self-generated revenues that are not derived from or linked to

actual taxpayer contributions, and therefore those funds do not constitute ‘state, county, or

municipal funds’ as that phrase is used in the Ethics Act.” See Order at p. 6. Defendants’

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Motion to Alter, Amend, or Vacate, or in the Alternative, a Request for Clarification

(“Motion”) seeks to amend that language with narrow, self-serving changes that create a

new and unsupportable definition of “state, county, or municipal funds.”

Defendants seek this amendment pursuant to Ala. R. Civ. P. 59(e), a procedural

rule meant to serve as a means “to correct manifest errors of law or fact or to present newly

discovered evidence.” See Alfa Mut. Ins. Co. v. Culverhouse, 149 So. 3d 1072, 1075 (Ala.

2014) (quoting Publishers Res., Inc. v. Walker-Davis Publ’ns, Inc., 762 F.2d 557, 561 (7th

Cir. 1985)). The Order, however, contains no manifest errors of law or fact, and the Motion

presents no newly-discovered evidence. Because Defendants have failed to meet the legal

standard of Ala. R. Civ. P. 59, Defendants’ Motion is due to be denied.

I. Defendants’ Request

Defendants seek an amendment to the Order that would replace certain language

used by this Court as to what constitutes “state, county, or municipal funds” under the

Ethics Act. 1 Specifically, Defendants seek to make the following changes, with the

language Defendants propose to delete from the Order stricken through, and the language

Defendants propose to replace it with underlined:

1
The Motion conflates a request for an amendment to the Order with clarification of the
Order (e.g., “The Defendants request that this Court clarify, alter or amend that order,”
“The Defendants suggest the following clarification,” and “The requested amendment”),
but a request for an amendment is not legally the same as a request for clarification. See
Muellen v. Ritter, 96 So. 3d 863, 868 (Ala. Civ. App. 2012) (“A ‘motion for clarification’
does not seek to persuade the trial court that a prior judgment should be changed, modified,
or invalidated. If it does seek to do any of those things, then it is not a ‘motion to clarify’ a
judgment, but a motion to alter, amend, or vacate a judgment . . . .” (emphasis in original))
The Authority submits Defendants’ Motion is properly considered as a motion to alter,
amend, or vacate pursuant to Ala. R. Civ. P. 59(e) and, because Defendants failed to meet
the legal standard of the rule, Defendants’ Motion is due to be denied.
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This Court finds that the The funds used to pay Authority employees are
self-generated revenues that are not derived from or linked to actual
taxpayer contributions commercial arms-length transactions between this
public corporation and private business entities in which the parties can
negotiate their terms, and therefore those the funds derived from those
negotiations do not constitute ‘state, county, or municipal funds’ as that
phrase is used in the Ethics Act.

See Order at p. 6, Motion at pp. 2–3. According to Defendants, this Court’s language

“presents a real impediment to the Commission adopting future opinions consistent with

the Court’s order,” and “[a] positive statement about how the revenues are generated would

be more instructive to the Commission moving forward than a statement in the negative

about how they are not generated.” Motion at p. 2. In short, Defendants would prefer to

operate under their own version of the facts and law rather than the Order appropriately

entered by this Court after consideration of the facts and law before it.

II. Analysis

Defendants correctly recount that funding for the operations of the Birmingham-

Shuttlesworth International Airport (“Airport”), including the salaries of all Authority

employees, is derived exclusively from user and landing fees paid by the airlines and from

rental, concession, and other fees paid by lessees, concessionaries, and other users of

airport property and facilities. Motion at p. 2 (citing Doc. 26 at ¶ 11). Defendants stipulated

to those facts in the Affidavit of Ronald F. Mathieu (Doc. 133) and Defendants used that

exact language in the “Statement of Undisputed Material Facts” section of Defendants’

Brief in Support of Motion for Summary Judgment (Doc. 157). Immediately after

recounting these uncontroverted facts in the Motion, however, Defendants now attempt to

manipulate these previously-stipulated to facts in two critical ways. First, although this new

narrative was never advanced by the Authority in pleadings or during argument, and no

factual basis exists for their proposed new language, Defendants now posit an alternative
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scenario for the funds that are excluded from the Ethics Act’s definition of “state, county

or municipal funds” as only those funds resulting from negotiated commercial arms-length

transactions between a public corporation (the Authority) and private business entities (the

airlines, the lessees, and concessionaires). Second, despite having previously stipulated and

expressly stated otherwise in their prior briefing to this Court. Defendants’ new

manipulated version of the facts completely ignores that funding for the Authority comes

not only from “airlines, the lessees, and concessionaires,” but also from “other users of the

airport property and facilities.” See Affidavit of Ronald F. Mathieu (Doc. 133) at ¶ 6, and

Defendants’ Brief in Support of Motion for Summary Judgment (Doc. 157) at p. 2.

Defendants’ “arms-length transactions” language is completely new to this appeal.

Nowhere in Defendants’ prior briefing, pleadings, or in any exhibits submitted to this Court

has there been a reference to the requirement of “arms-length transactions” between the

Authority and any other entity and how such transactions might affect the interplay

between the Authority’s self-generated revenues and the Ethics Act’s definition of “state,

county, or municipal funds.” No affidavit has been submitted stipulating that the self-

generated revenues of the Authority are the result of “arms-length transactions.” No

argument has been made as to why “arms-length transactions” would be required or what

the phrase even means. Defendants maintain that the phrase “actual taxpayer contributions”

is not contained in the holding of Water Works and Sewer Board of the City of Selma v.

Randolph, 833 So. 2d 604 (Ala. 2002), yet they simultaneously seek to inject new “arms-

length transactions” language that is not contained in either Randolph or any other binding

legal authority.

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In Randolph, the public utility board “collect[ed] fees from the public” for the

services it provided, and the utility board’s enabling statute contemplated that “the monies

used by such a public corporation in the operation of its business shall come from revenues

generated by the operations of its system . . . .” Id., 833 So. 2d at 607–08. The Randolph

Court expressly stated that “[t]he fact that the customers of the system operated by the

public corporation are also residents of the municipality does not convert the revenue

received from those customers into municipal funds.” Id. at 608 (emphasis added). The

implication from this finding is that anything short of revenues linked to taxpayer

contributions would not be considered “municipal funds.” 2 Thus, this Court properly

interpreted the scope of the binding authority Randolph in determining that the funds used

to pay Authority employees are self-generated revenues that are not derived from or linked

to actual taxpayer contributions, and therefore those funds do not constitute “state, county,

or municipal funds” as that phrase is used in the Ethics Act.

In their effort to narrow the scope of the Authority’s self-generated revenues to

“revenues that are derived from commercial arms-length transactions between this public

corporation and private business entities,” Defendants also ignore the fact that the

Authority’s self-generated revenues come not only from business entities, but also from

individuals. As this Court recognized in the Order (Doc. 193), as the parties stipulated to

2
In addition to being supported by the Randolph Court’s decision, this implication is
expressly supported by the Alabama Court of Criminal Appeals’ opinion in Fitch v. State.
The Fitch Court plainly drew a connection between the conclusion that a county “owned”
certain funds and the fact that those funds were “derived from taxes assessed upon the
citizens of the county.” See 851 So. 2d 103, 134 n.26 (Ala. Crim. App. 2001) (“The money
in Fitch’s case was derived from taxes assessed upon the citizens of Pickens County to
be used by the County to pay County expenses. Thus, Pickens County ‘owned’ the
money.” (emphasis added)).
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in the Joint Stipulations of Fact (Doc. 132), and as Defendants stated in the “Statement of

Undisputed Material Facts” section of Defendants’ Brief in Support of Motion for

Summary Judgment (Doc. 157), part of the funding for operations of the Airport, including

salaries of Authority employees, comes from fees paid by other users of airport property

and facilities. 3 Defendants’ proposed amendment, which extends only to transactions

between the Authority and “private business entities,” omits this critical aspect of the

Authority’s funding. This omission is particularly notable in the context of Randolph,

where, as described above, the court explicitly held that fees collected by a public

corporation from its customers were not the type of “municipal funds” that would have

rendered those funds “funds belonging to the state, county, or municipality” under the

Sunshine Law. Randolph, 833 So. 2d at 608. The same is true for the Authority: the

revenues generated by the Authority from users of airport property and facilities are not

“state, county, or municipal funds.” Defendants’ proposed amendment in the Motion,

which omits the Authority’s revenues generated from individual users (and creates an

entirely new and unsupportable limitation on what funds are excluded from the Ethics Act’s

definition of “state, county or municipal funds”), therefore does not comport with the

express holding of the Randolph Court.

III. Conclusion

Defendants do not contend that the Order is based on an error in fact. Defendants

do not present new evidence which could be grounds for altering, amending, or vacating

3
Should the Court wish for further context regarding this aspect of the Authority’s funding,
including examples such as parking and vending revenues which are not arms-length
transactions, the Authority is happy to provide an affidavit from Authority CEO Ronald F.
Mathieu.
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the Order. Thus, pursuant to Ala. R. Civ. P. 59(e), the only basis upon which the Order

could be altered, amended, or vacated is an error of law. See Culverhouse, 149 So. 3d at

1075. No such error of law exists in the Order. Defendants simply do not want to be bound

by the reasoned decision of this Court. In essence, the Motion seeks to overturn the Order

by replacing this Court’s language with language that is legally incorrect, contradicts

stipulated and undisputed facts in the record, and would dramatically alter and restrict the

Court’s findings as set forth in the Order. The Authority therefore respectfully requests that

this Court deny Defendants’ Motion.

Respectfully submitted this 8th day of July, 2020.

/s/ J. Mark White

J. Mark White (WHI001)
Augusta S. Dowd (DOW003)
W. Chambers Waller, IV (WAL242)
Attorneys for Plaintiff
Birmingham Airport Authority

OF COUNSEL:
WHITE ARNOLD & DOWD P.C.
2025 Third Avenue North, Suite 500
Birmingham, Alabama 35203
Telephone: (205) 323-1888
Facsimile: (205) 323-8907
E-mail mwhite@whitearnolddowd.com
adowd@whitearnolddowd.com
cwaller@whitearnolddowd.com

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CERTIFICATE OF SERVICE

I hereby certify that on July 8, 2020, I electronically filed the foregoing via the
AlaFile system, which will electronically send notice to the following counsel of record:

Cynthia P. Raulston
General Counsel
Alabama Ethics Commission
100 North Union Street, Ste. 104
Montgomery, AL 36104

/s/ J. Mark White

OF COUNSEL