DOCUMENT 151

ELECTRONICALLY FILED
3/26/2020 9:28 PM
03-CV-2019-000531.00
CIRCUIT COURT OF
MONTGOMERY COUNTY, ALABAMA
GINA J. ISHMAN, CLERK
IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA
FIFTEENTH JUDICIAL CIRCUIT

ALABAMA DEMOCRATIC PARTY, et al. )

)
Plaintiffs, )
)
v. )
) CASE NO. 03-CV-2019-531
SHEILA DEGAN GILBERT, et al. )
)
Defendants. )

PLAINTIFF’S MOTION TO ALTER, VACATE, SET ASIDE, AMEND OR

OTHERWISE RECONSIDER ITS ORDER OF DISMISSAL

COME NOW Plaintiffs and present the following motion to

vacate, alter, amend, set aside or otherwise reconsider its

Order of dismissal of the above-styled cause. In support

thereof, plaintiffs say as follows:

Summary of Argument

Plaintiffs disagree that their case should be dismissed

for lack of jurisdiction. As explained below, there clearly

is jurisdiction over this matter, which is not the kind of

“intra-party” dispute addressed previous cases, where the

Party and/or its Executive Committee is the defendant, and

the plaintiffs are seeking to review decisions made pursuant

to a properly constituted Party structure. Instead, this is

a claim brought by the Party and the Executive Committee,

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seeking to prevent another group of individuals from wrongly

purporting to act as and on behalf of the Party. The Alabama

Legislature has expressly decided that the courts have a role

to play in preventing such impostors from misrepresenting

themselves as acting on behalf of a political party. That is,

the Fair Campaign Practices Act, see Ala. Code § 17-5-16,

provides explicitly that a person may not “misrepresent

himself or herself, or any other person or organization with

which he or she is affiliated, as speaking or writing or

otherwise acting for or on behalf of any . . . political

party . . . in a manner which is damaging or is intended to

be damaging to such . . . political party.”

Moreover, even absent this legislative act, the basis

for jurisdiction would be clear. The courts are properly

circumspect about intruding into intra-party matters, but

this reluctance is not the same as complete abdication of the

judicial function. Without some judicial backstop, there

would be nothing to stop a splinter group of, for example,

Democratic Socialists or “never-Trump” Republicans from

declaring that the existing party had lost its way, electing

their own purported party leaders, and proceeding to conduct

business as the Alabama Democratic or Republican Party,

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causing all manner of disruption and confusion with regard to

the activities and relationships of the actual Party. It

cannot, and certainly should not, be the law that the actual,

properly constituted Party would have no recourse under such

circumstances (again, all of the cases identified by the

defendants where this Court has declined jurisdiction have

been suits against the Party, not suits brought by the Party).

Additionally, because the November 2, 2019 meeting was

permitted to go forward before the actual controversy between

the parties was resolved, the bank accounts of the Party are

now frozen; access to the Party office is disputed with one

side claiming it received a threat of violence; there are two

sets of officers each claiming authority to manage the Party

and with each side attempting to exercise that authority; and

two different sets of at-large members have been added to the

SDEC. In short, the Party is in a state of chaos, and judicial

intervention is fully appropriate.

Defendants’ Jurisdictional Arguments are Due to Overruled

Defendants rely on numerous cases involving challenges

to “the constituted authorities” of a political party. Smith

v. McQueen, 166 So. 788, 789 (Ala. 1936). But, unlike the

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cases cited by plaintiffs,1 the constituted authorities are

the plaintiffs in this case. As said constituted authorities,

plaintiffs (i.e., the Party and the SDEC) have made

determinations and settled the internal party disputes at

issue. The problem in this case is that defendants persist in

acting in contravention of the Party’s resolution of those

disputes. Specifically, defendants have conducted meetings

outside the scope of the Party which they purport to be

meetings of the Party, and they are purporting to act as and

on behalf of the Party.2

These actions are not part of the “internal political

party procedures,” Mot. Dismiss 7, of the Party. They are

simply rump meetings that defendants are misrepresenting as

1 See McQueen (aggrieved candidate sued Chair of SDEC); Drake v.

Ala. Repub. Party, 209 So. 3d 1118 (Ala. Civ. App. 2016) (aggrieved
putative candidates sued Party). The same is true of the cases
cited by Intervenors. See Ex parte Baxley, 496 So. 2d 688, 689
(Ala. 1986) (aggrieved candidate sued SDEC and Party officials);
Perloff v. Edington, 302 So. 2d 92, 93 (1974) (aggrieved candidate
sued SDEC); Ex parte Skidmore, 168 So. 2d 483, 483 (1964)
(aggrieved candidate sued SDEC subcommittee); Bridges v. McCorvey,
49 So. 2d 546 (Ala. 1950) (aggrieved candidates sued SDEC and Party
officials). Other cases not cited by Appellants or amicus follow
the same pattern. See Ala. Repub. Party v. McGinley, 893 So. 2d
337 (Ala. 2004) (aggrieved putative candidate sued Party); McAdory
v. Ala. Dem. Party, 729 So. 2d 310 (Ala. 1999) (aggrieved candidate
sued Party).
2
The descriptions in this Motion are based on the allegations in
the Complaint, which at this stage of the litigation should be
taken as true for purposes of determining jurisdiction. Pontius v.
State Farm Mut. Auto. Ins. Co., 915 So. 2d 557, 563 (Ala. 2005).
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being affiliated with the Party. Defendants are impostors

masquerading as Party officials, and Alabama statutory law

specifically grants the courts power to intervene under such

circumstances. Ala. Code § 17-5-16; cf. McQueen, 166 So. at

789 (declaring exception to general rule of non-interference

in party affairs “to the extent that jurisdiction is conferred

by statute or that the subject has been regulated by statute”)

(emphasis added).

McQueen, of course, involved a classic intra-party

dispute. No one in that case disputed who were the constituted

Party authorities. The dispute arose when the petitioners

sought to become candidates for party delegate through a

primary, and the Party elected to select delegates in a

different manner. The petitioners then sued to review that

decision.

This case involves a completely different issue, raised

by the Party. The actions taken by defendants are not intra-

party actions, because defendants have no authority to act as

or on behalf of the Party. Rather, they are misrepresenting

themselves as such, and such actions are specifically

regulated by statute. McQueen itself drew the distinction

that matters regulated by statute were properly subject to

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judicial review, and the McQueen court did in fact review the

question of whether the relevant statutes had been violated,

before deciding that it would not go further to review “party

custom and usage.” Id. at 791.

McQueen, therefore, is fully consistent with other

Alabama jurisdictional cases involving political party

affairs. In Veitch v. Vowell, 266 So. 3d 678 (Ala. 2018), for

example, a candidate for district attorney sought a

declaratory judgment that the names of candidates must be

included on the primary election ballots used in both

divisions of Jefferson County. The trial court dismissed for

lack of jurisdiction based on Ala. Code Section 17-16-44, the

“jurisdiction stripping statute”, which provides:

No jurisdiction exists in or shall be exercised by

any Judge or court to entertain any proceeding for
ascertaining the legality, conduct, or results of
any election, except so far as authority to do so
shall be specially and specifically enumerated and
set down by statute. . . .

In reversing the Circuit Court, the Alabama Supreme Court

in Veitch made clear that statutes restricting the

jurisdiction of courts of equity should be strictly

construed. See 266 So. 3d at 683. The Court cited the holding

of Sears v. Carson, 551 So. 2d 1054 (Ala. 1989), that despite

a primary election being involved, if an official does not

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follow applicable law, there is court jurisdiction. In so

holding, the Court in Sears stated: “If Section 17-5-6 [the

predecessor to the “jurisdiction stripping statute”] is

allowed to stand between the judiciary and such acts, any

canvassing board would be provided a license to change the

result of an election by cabal.” 551 So. 2d at 1057.

The same is true here. If there is no jurisdiction over

the matters alleged by plaintiffs, any splinter cabal may, by

its own fiat, proclaim that it is the new leadership of an

Alabama political party without fear of court involvement.

Without Court Involvement, There Is No Adequate Resolution

As already noted, the bank accounts of the Party are

frozen. They are frozen because there are two claimants to

the funds held in the bank accounts. If there is no

jurisdiction here, an interpleader will be required to

determine whether plaintiffs or, alternatively, defendants

are entitled to control the accounts. The same is true with

respect to control over the office of the Party. Without Court

resolution, the landlord is in no position to determine who

the legal tenant is, i.e., who is entitled to possession.

Each of these issues, standing alone, are ripe for the

exercise of court jurisdiction. There are other issues that

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require declaratory relief. Without any effort to be

exhaustive, there is an issue regarding who is entitled to

control the books and records of the Party, and even as to

the membership of the SDEC. Allof these issues turn on the

issue now pending in the Circuit Court of Montgomery County,

an issue that is justiciable and ripe for judicial

determination.

WHEREFORE, PREMISES CONSIDERED, plaintiff prays that

this court will vacate and set aside or reconsider its Order,

Document 148, wherein the Court issued a finding that it

“lacks jurisdiction over what appears to be an intra-

political-party dispute regarding the officer elections and

governance of the Alabama Democratic Party.”

Submitted this, the 26th day of March, 2020.

s/ A. Wesley Pitters
A. Wesley Pitters, Esq. (PIT025)
A. WESLEY PITTERS, P.C.
1145 South Perry Street (36104)
P.O. Box 1973
Montgomery, AL 36102-1973
Telephone: (334) 265-3333
Telecopier: (334) 265-3411
awpitters@pitterslawfirm.com

Attorney for the Plaintiffs

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CERTIFICATE OF SERVICE

I certify that on March 26, 2020, a copy of the foregoing

document was served via the Court’s electronic filing system,

alafile, upon the following:

BARRY A. RAGSDALE, ESQUIRE

ATTORNEY FOR DEFENDANTS
SIROTE & PERMUTTS, P. C.
2311 Highland Avenue South
Birmingham, Alabama 35205

RICHARD P. ROUCO, ESQUIRE

QUINN, CONNOR, WEAVER, DAVIES & ROUCO, LLP
2-20th Street North, Suite 930
Birmingham, Alabama 35203

ANIL MUJAMDAR, ESQUIRE

ZARZAUR LAW. LLC
2332 Second Avenue North
Birmingham, Alabama 35203-3808

MARC ERIK ELIAS, ESQUIRE

JOHN M. DEVANEY, ESQUIRE
HON. ELIZABETH C. FROST
PERKINS COIE, LLP
700 Thirteenth Street, N.W., Suite 600
Washington, D.C.20005-3960

s/A. Wesley Pitters

Of Counsel