ELECTRONICALLY FILED 7/20/2012 1:15 PM CV-2012-902271.

00 CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA ANNE-MARIE ADAMS, CLERK

IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA STATE OF ALABAMA BOARD OF EDUCATION, DR. THOMAS R. BICE, in his capacity as State Superintendent of Education, LUTHER STRANGE, in his capacity as Attorney General of the State of Alabama, ) ) ) ) ) ) Plaintiffs, ) ) v. ) ) BIRMINGHAM CITY BOARD OF ) EDUCATION, EDWARD MADDOX, ) President, Birmingham City Board of Education, ) ALANA W. EDWARDS, Vice President, ) Birmingham City Board of Education, ) TYRONE H. BELCHER, SR., District 1 ) Representative, Birmingham City Board of ) Education, EMANUEL B. FORD, District 5 ) CIVIL ACTION NO. CV-2012-902271 Representative, Birmingham City Board of ) Education, BRIAN GIATTINA, District 3 ) Representative, Birmingham City Board of ) Education, W.J. MAYE, JR., District 6 ) Representative, Birmingham City Board of ) Education, VIRGINIA S. VOLKER, District 2 ) Representative, Birmingham City Board of ) Education, APRIL M. WILLIAMS, District 8 ) Representative, Birmingham City Board of ) Education, PHYLLIS F. WYNE, District 9 ) Representative, Birmingham City Board of ) Education; SAMUETTA DREW, Chief ) Operations Officer and Putative Interim ) Superintendent, Birmingham City Board of ) Education, ) ) Defendants. MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION The State of Alabama Board of Education (“SBE”), Dr. Thomas R. Bice, in his capacity as State Superintendent of Education, and Luther Strange, in his capacity as Attorney General of the State of Alabama, move this Court for entry of a Temporary Restraining Order and a

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Preliminary Injunction to prevent the defendants, and everyone working in concert or participation with them, from acting in defiance of the authority of the SBE and Superintendent Bice to manage and control in all respects the financial operation of the Birmingham City Board of Education (“the Birmingham Board”) until the rights and duties of the parties can be determined by the Court and proceeding to consider preliminary and permanent injunctive relief can be conducted. As grounds for this motion, the plaintiffs show as follows: Introduction Now and for some time in the past the Birmingham Board has been in an unsound financial condition, which has created exigent and adverse circumstances affecting the immediate and long-term educational interests of the Birmingham school system. For example, the Birmingham school system is unprepared, both fiscally and administratively, to begin the 2012-13 school year. The fiscal unsoundness of the Birmingham Board has prompted intervention by the SBE, and Superintendent Bice has assumed full and complete control over the financial operations of the Birmingham Board. The Birmingham Board, however, has openly defied the authority of Superintendent Bice by refusing to implement a Financial Recovery Plan (that has been approved by the Birmingham Board) that is essential to restoring fiscal stability to the Birmingham Board, and has even taking the extreme action of denying, temporarily, the State Superintendent’s staff access to the offices of the Birmingham Board and to their own files and computers. In short, the Birmingham Board is in a state of financial instability and political crisis and immediate court intervention is necessary to restore order and to ensure the prompt opening of the Birmingham school system for the 2012-13 academic year.

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Argument and Citation to Authority 1. In response to this crisis, and pursuant to state law – ALA. CODE § 16-6B-4, 1 see

also § 16-3-11 (“The State Board of Education shall exercise, through the State Superintendent of Education and his professional assistants, general control and supervision over the public schools of the state ….”) and § 16-4-8 (the Superintendent “shall have the authority to review actions and orders of … city boards of education and of … city superintendents of schools in matters relating to finance and other matters seriously affecting the educational interest. Upon such review the State Superintendent of Education shall have the power to determine from the facts the just and proper disposition of the matter. The order of the state superintendent shall be binding.”) – Superintendent Bice appointed Dr. Ed Richardson as Chief Financial Officer (“CFO”) and made him responsible for preventing further deterioration of the Birmingham Board’s financial condition, restoring the Birmingham Board to financial stability, and enforcing the Birmingham Board’s compliance with statutory, regulatory, and other binding legal standards or requirements relating to the fiscal operation of the Birmingham Board. 2. Since Superintendent Bice appointed the CFO, the Birmingham Board has

opposed the authority of Superintendent Bice and his appointed CFO. The actions of the

Section 16-6B-4 pertains to the SBE’s intervention powers to maintain financial accountability and provides, in relevant part: “Upon approval by the State Board of Education, the State Superintendent of Education shall appoint an individual to be chief financial officer to manage the fiscal operation of the local board of education, until such time as the fiscal condition of the system is restored …. The State Superintendent of Education, directly or indirectly through the chief financial officer, may direct or approve such actions as may in his or her judgment be necessary to: (1) Prevent further deterioration in the financial condition of the local board; (2) restore the local board of education to financial stability; and (3) enforce compliance with statutory, regulatory, or other binding legal standards or requirements relating to the fiscal operation of the local board of education ….”

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Birmingham Board threaten effectively to undo the action of Superintendent Bice in appointing the CFO. 3. As a consequence of the Birmingham Board’s unlawful conduct and defiance, and

its attempt to effectively undo the appointment of the CFO, the rights and interests of the State are being irreparably harmed each day that the CFO is unable to perform his duties. 4. Based on the contents of the verified complaint and its exhibits, plaintiffs are

likely to succeed on the merits of this action to determine the respective rights of the parties under Alabama law. The rights of the parties are clear and well-defined under Alabama law; however, the actions of the defendants have given rise to uncertainty and insecurity with respect to the plaintiffs’ rights, status, and other legal relations so as to make immediate injunctive relief appropriate. Superintendent Bice has been granted the express authority by the SBE to “intervene and assume direct control of the fiscal operation of the Birmingham City Board of Education” and to “appoint a Chief Financial Officer to manage the financial operations of the Birmingham City Board of Education and to make associated recommendations to the State Superintendent of Education as necessary to restore the Birmingham City Board of Education to a sound financial condition.” Superintendent Bice has duly appointed a CFO, Dr. Ed Richardson. Nevertheless, the Birmingham Board, without legal basis, has refused to cooperate with the CFO, and through him with Superintendent Bice (and the SBE), and instead has defied the CFO’s authority to manage and control the Birmingham Board’s financial operations. Accordingly, the Birmingham Board is acting beyond its authority and directly contrary to and in defiance of Alabama law and the lawful directives of state officials. 5. Plaintiffs are suffering immediate and irreparable injury as the Defendants are

openly defying state law and directives of state officials authorized to give those directives.

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Without a temporary restraining order and a preliminary injunction, plaintiffs will continue to suffer immediate and irreparable injury – as is evident from the Birmingham Board’s obstructionist tactics and actions over the past several months, and its inability to meet its obligations for the 2012-2013 school year – in that the authority of Superintendent Bice will continue to be defied, challenged and disregarded, further jeopardizing the fiscal soundness of the Birmingham Board and the Birmingham school system and the prompt opening of the Birmingham schools for the 2012-13 academic year. 6. Plaintiffs have no plain, speedy or adequate remedy at law to protect their

interests, foremost of which is protecting the students of the Birmingham school system and their parents from the continuing and further dangers associated with the Birmingham Board’s fiscal mismanagement. 7. There will be no hardship to Defendants as a result of injunctive relief because

Defendants are acting unlawfully. In any event, any hardship imposed on Defendants by an injunction would not unreasonably outweigh the benefit accruing to Plaintiffs. 8. The injunctive relief requested by plaintiffs, moreover, will not adversely impact

the public interest. To the contrary, the public interest would be served by injunctive relief because, without an injunction, the Birmingham Board will continue to defy the authority of Superintendent Bice which, in turn, will jeopardize the fiscal soundness of the Birmingham Board and the prompt opening of the Birmingham school system. Indeed, if injunctive relief is denied, the opening of the Birmingham schools may be delayed significantly. 9. The undersigned counsel certifies that prior to filing and presenting this motion,

he notified legal counsel for the Birmingham Board that the motion was being presented to this Court, and served by email a copy of the motion on counsel for the Birmingham Board.

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WHEREFORE, premises considered, Plaintiffs respectfully request this Court to take jurisdiction of this cause and: (a). Enter, in accordance with Ala. R. Civ. P. 65(b), a temporary restraining

order specifically restraining and enjoining defendants from (i) interfering, directly or indirectly, with the implementation of the Financial Recovery Plan heretofore approved by the Birmingham City Board of Education, (ii) interfering, directly or indirectly, with any other decisions or actions deemed necessary and appropriate by Superintendent Bice to ensure that the Birmingham school system opens in a timely and orderly manner, (iii) interfering, directly or indirectly, with Superintendent Bice’s and his staff’s unfettered access to the offices of the Birmingham City Board of Education and their computers and files, and (iv) taking any action that is inconsistent with Dr. Craig Witherspoon’s continuing to serve as the Superintendent of the Birmingham Board, until the rights and duties of the parties can be determined by the Court and any further injunctive relief can be considered. (b). Set this matter for hearing on preliminary injunction within 10 days, and

upon such hearing, specifically restrain and enjoin defendants, pending a final decision on the merits, from (i) interfering, directly or indirectly, with the implementation of the Financial Recovery Plan heretofore approved by the Birmingham City Board of Education, (ii) interfering, directly or indirectly, with any other decisions or actions deemed necessary and appropriate by Superintendent Bice to ensure that the Birmingham school system opens in a timely and orderly manner, and (iii) interfering, directly or indirectly, with Superintendent Bice’s and his staff’s unfettered access to the offices of the Birmingham City Board of Education and their computers and files, and (iv) taking any action that is inconsistent with Dr. Craig Witherspoon’s continuing to serve as the Superintendent of the Birmingham Board.

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Respectfully submitted this 20th day of July, 2012. LUTHER STRANGE (STR003) Attorney General BY: s/Joshua K. Payne Joshua K. Payne (PAY024) Assistant Attorney General OF COUNSEL: Office of the Attorney General 501 Washington Avenue Montgomery, AL 36130 334/242-7300 334/353-8440 (fax) jpayne@ago.state.al.us s/David R. Boyd One of Counsel for the State Board of Education and Dr. Thomas R. Bice OF COUNSEL: David R. Boyd (BOY005) Dorman Walker (WAL086) G. Lane Knight (KNI028) Balch & Bingham LLP Post Office Box 78 Montgomery, AL 36101-0078 334/834-6500 334/269-3115 (fax) dboyd@balch.com dwalker@balch.com lknight@balch.com Larry E. Craven (CRA007) Juliana T. Dean (DEA036) Alabama State Department of Education P.O. Office Box 302101 Montgomery, AL 3613-2101 334/242-1899 334/242-0982 (Fax) lcraven@alsde.edu jdean@alsde.edu

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DEFENDANTS TO BE SERVED BY CERTIFIED MAIL: Birmingham City Board of Education 2015 Par Place North Birmingham Alabama 35203 Edward Maddox President Birmingham City Board of Education 2015 Par Place North Birmingham Alabama 35203 Alana W. Edwards Vice President Birmingham City Board of Education 2015 Par Place North Birmingham Alabama 35203 Tyrone H. Belcher, Jrs. District 1 Representative Birmingham City Board of Education 2015 Par Place North Birmingham Alabama 35203 Emanuel B. Ford District 5 Representative Birmingham City Board of Education 2015 Par Place North Birmingham Alabama 35203 Brian Giattina District 3 Representative Birmingham City Board of Education 2015 Par Place North Birmingham Alabama 35203 W.J. Maye, Jr. District 6 Representative Birmingham City Board of Education 2015 Par Place North Birmingham Alabama 35203

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Virginia S. Volker District 2 Representative Birmingham City Board of Education 2015 Par Place North Birmingham Alabama 35203 April M. Williams District 8 Representative Birmingham City Board of Education 2015 Par Place North Birmingham Alabama 35203 Phyllis F. Wyne District 9 Representative Birmingham City Board of Education 2015 Par Place North Birmingham Alabama 35203 Samuetta Drew Chief Operations Officer Birmingham City Board of Education 2015 Par Place North Birmingham Alabama 35203

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CERTIFICATE OF SERVICE I hereby certify that I have electronically filed the foregoing with the Clerk of the Court using the AlaFile system which will send notification of such filing and/or that a copy of the foregoing has been served upon the following by electronic mail, on this the 20th day of July, 2012: Frederic A. Bolling, Esq. The Bolling Law Firm LLC 1370 Rock Creek Lane Pleasant Grove, Alabama 35127 E-mail: bollinglawfirm@gmail.com Tom Stewart, Esq. Waldrep, Stewart & Kendrick 2323 Second Avenue North Birmingham, Alabama 35223 E-mail: stewart@wskllc.com Afrika C. Parchmank, Esq. Birmingham City Schools 2015 Park Place Birmingham, Alabama 35203 E-mail: aparchman@bham.k12.al.us

s/David R. Boyd OF COUNSEL

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