IN THE CIRCUIT COURT OF

MONTGOMERY COUNTY, ALABAMA

Bob Friedman,
on behalf of himself and
other Persons similarly situated
Plaintiff,
Vs.
Senator Cam Ward,
Senator J.T. “Jabo” Waggoner,
Senator Quinton T. Ross,
Representative Alan Baker,
Representative Jimmy Martin,
Representative Chris England
and Secretary of State John S.
Merrill,
Defendants.
________________________________
CLASS ACTION COMPLAINT FOR INJUNCTIVE, DECLARATORY AND
OTHER RELIEF
Comes now the Plaintiff, Bob Friedman ("Plaintiff"), on
behalf of himself and a class of persons similarly
situated, and by way of this Complaint against Defendants
Senator Cam Ward, Senator J.T. “Jabo” Waggoner, Senator
Quinton T. Ross, Representative Alan Baker, Representative
Jimmy Martin, and Representative Chris England and states
as follows:

INTRODUCTION

1.

On December 14, 2015, the Circuit Court of the

County of Jefferson,, Alabama entered judgment that (1) Act
No. 2015-226 of the Alabama Legislature to be “VOID and of
NO legal effect or authority in that HB 573 was passed in
violation of Art. IV, §71.01 of the Constitution of the
State of Alabama,” (2) declared void all actions by
Jefferson County taken under authority of said Act, and (3)
denied the County’s validation request. (Case 01-CV-2015903133-MGG, Doc. 67).
2.

The Court’s Judgment was based solely upon the

fact that the Alabama Legislature, when passing Act 2015226, violated Art. IV, §71.01 of the Alabama Constitution
(alternatively known as Amendment No. 448 – The Budget
Isolation Amendment).
3.

On August 26, 2016, the State Legislature passed

SB7 designated Act 2016-430, which asks the citizens of
this State to pass a constitutional amendment to and
retroactive repeal of

Art. IV §71.01 from its inception

through November 8, 2016.
4.

The proposed repeal of Art. IV from its inception

to November 8, 2016, takes away and rescinds the judgment
rendered by the Jefferson County Circuit Court on December
14, 2015, by changing the language of §71.01 from requiring
a Budget Isolation Resolution to be passed by not less than
3/5ths of a “quorum present” to “than a three-fifths majority
of the members present and voting, a quorum being present.”
(See Exhibit B, Act 2016-430, p. 3)

5.

Plaintiff does not legally object to this change

going forward from November 8, 2016, if the voters approve,
but requests a declaratory judgment and injunctive bar of
placing this change on the ballot to be applied
retroactively to usurp the power of the Circuit Court to
render a decision in Case No. 01-CV-2015-903133-MGG based
on the constitutional limitation of BIR voting requirements
of 3/5ths of a quorum present approved by a majority of the
voters in 1983, as Amendment 448, and

effective on

December 14, 2015, the date of the Judge Graffeo ruling in
Case No. 01-CV-2015-903133-MGG (the “Case”).
6.

”This is a putative class action. Plaintiff and

the Class Members are persons or entities who are citizens
of the State of Alabama protected by the organic law of
this State embodied in Alabama Constitution Article IV,

Section 95, limiting power of the State Legislature to
devise ways to overturn court decisions, Section 42 and 43
obligating the State legislature to stay in their
legislative lane and not usurp the power of the courts in
this State and Section 13 which guarantees the courts of
this state will be open to all citizens without
interference from the State Legislature. These provisions
proscribe constitutional limits on the powers of the State
Legislature as follows:
7.

Alabama Const. Art. IV, Sec. 95 provides:

“Impairing obligation of contracts; revival of barred
rights or remedies; removal of cause of action or defense
to suit after commencement of suit. There can be no law of
this state impairing the obligation of contracts by
destroying or impairing the remedy for their enforcement;
and the legislature shall have no power to revive any right
or remedy which may have become barred by lapse of time, or
by any statute of this state. After suit has been commenced
on any cause of action, the legislature shall have no power
to take away such cause of action, or destroy any existing
defense to such suit.” (Emphasis added).
8.

Alabama Const. Art. III, Sec. 42 provides:

“Legislative, executive and judicial departments
established. The powers of the government of the State of
Alabama shall be divided into three distinct departments,
each of which shall be confided to a separate body of
magistracy, to wit: Those which are legislative, to one;
those which are executive, to another; and those which are
judicial, to another.
9.

Alabama Const. Art. III, Sec. 43. Separation of

powers. In the government of this state, except in the
instances in this Constitution hereinafter expressly
directed or permitted, the legislative department shall
never exercise the executive and judicial powers, or either
of them; the executive shall never exercise the legislative
and judicial powers, or either of them; the judicial shall
never exercise the legislative and executive powers, or
either of them; to the end that it may be a government of
laws and not of men.
10. Alabama Const. Art. I, Sec. 13 provides:”Courts to
be open; remedies for all injuries; impartiality of
justice. That all courts shall be open; and that every
person, for any injury done him, in his lands, goods,
person, or reputation, shall have a remedy by due process

of law; and right and justice shall be administered without
sale, denial, or delay.
JURISDICTION AND VENUE
11. This Court has jurisdiction to issue the
injunctive and declaratory relief requested pursuant to
Ala. Code § 6-6-220.
12. Venue in this action is proper under Ala. Code §
6-3-11, in that the acts or omissions complained of in this
case occurred in Jefferson County, Alabama.

DEFENDANTS
13. Defendants, Senator Cam Ward, Senator J.T. “Jabo”
Waggoner, Senator Quinton T. Ross, Representative Alan
Baker, Representative Jimmy Martin, and Representative
Chris England are members of the Conference Committee that
approved SB7, Act 2016-430.
14. Defendant John S. Merrill is the Secretary of
State Plaintiff asks to be enjoined in publishing Amendment
14 in the Voter Pamphlet (Exhibit C) which this complaint
alleges to be unconstitutional.

COUNT 1: DECLARATORY JUDGMENT THAT SB7/ACT 2016-430 MUST
BE TAKEN OFF THE NOVEMBER 8, 2016 BALLOT BECAUSE IT
VIOLATES THE LAST CLAUSE OF ART. IV §95 OF THE ALABAMA
CONSTITUTION
15. A constitutional amendment requires three separate
steps: 1. Approval by the legislature, 2. Eight consecutive
weeks’ notice before an election, and 3. Majority vote of
electors for approval.

The legislature has abused its

power to put an amendment of the constitution on the ballot
as a first step in this process.
16. It is clear that the proposed amendment
retroactively repeals §71.01 which was approved by the
voters as Amendment 448.

(See, Exhibit B, p. 4, paragraph

C, which provides:
“Any resolution authorized by this amendment and
adopted before November 8, 2016, which conforms to this
paragraph, as amended, is ratified, approved,
validated, and confirmed and the application of any
such resolution is effective from the date of original
adoption.”
17.

In that way it retroactively deprives this court

of jurisdiction to hear the appeal of the Case and deprives
the Circuit Court of jurisdiction to have rendered the
judgment in the first place.
18. The legislative act of defendants in the
conference committee in proposing the amendment as the

first step in the constitutional amendment process, is sine
qua non of any usurpation the judicial power to allow
hearing and appeal of cases which could result from the
third step—approval by the voters.
19. Any one voting for this legislatively proposed
amendment will be voting to take away the ruling of Judge
Graffeo enforcing limits on legislative power imposed by
the voters themselves before, and in accordance with the
law of the Alabama constitution as it existed on November
8, 2016.
20. The legislature cannot hide its essential
participation behind the voters taking the final step in
the process. Judge Graffeo has rendered judgment in the
Case and the retroactivity of the Constitutional Amendment
cannot be allow to be presented to the voting public
without

allowing the Legislature to use its power to

initiate constitutional amendments to prescribe rules of
decision to the Judicial Department of the Alabama
government in cases pending before it.
21. Wherefore plaintiff on its behalf and on behalf of
the class it represents prays that the retroactive portions
of the proposed constitutional amendment be declared

unconstitutional under Section 95 of the Alabama
Constitution and

be stricken from the ballot measure now

called Amendment 14.
COUNT 2: DECLARATORY JUDGMENT THAT ACT 2016-430 MUST BE
TAKEN OFF THE NOVEMBER 8, 2016 BALLOT BECAUSE IT VIOLATES
ART. IV §§ 42 AND 43 OF THE ALABAMA CONSTITUTION
22. Paragraphs 1 through 21, above, are hereby
restated in this count 2.
23. In passing SB7 now Act 2016-430 the State
Legislature has inadvertently passed the limit which
separates the legislative from the judicial power.
24. It is of vital importance that these powers be
kept distinct. The Constitution provides that the judicial
power of the State of Alabama shall be vested in state
courts. Section 43 provides in relevant part:
“The legislative department shall never exercise the
executive and judicial powers, or either of them”

25. On December 2015, Judge Graffeo applied the
Constitutional super majority requirement in §71.01
approved by Statewide referendum making it a constitutional
violation for

the Legislature neglect its duty to pass a

State budget before going on to consider local bills.

The

State Legislature cannot use its power to initiate a
constitutional amendment to give itself a pardon for its
own constitutional violations and thereby take away the
rights of the voters who approved Amendment 448
retroactively.
26. Act 2016-430 is an attempt by the Legislature to
reopen previously rendered final judgments in the Case
which violates the Alabama Constitution's separation-ofpowers principle.
27. The manifest purpose of the legislature in passing
Act 2016-430 is to overrule, if voters approve this
legislative recommendation, open up and set aside the
judgment rendered by Judge Graffeo in the Case.
28. The legislators in passing Act 2016-430 cannot
deny that they used legislative power to propose
legislation and initiate a constitutional amendment which
would make it possible for voters to retroactively, from
the inception of Amendment 448 in 1984 through November 8,
2016, overrule a final judgment in Jefferson County Circuit
Court in the case and moot a pending case in Chilton
County.
29. In Jefferson County the cost to the County

Taxpayers will be approximately $100 million of new sales
taxes starting in approximately 2022 to 2046 when the
existing County school tax is scheduled to sunset-a new tax
liability of approximately $2.4 billion where approximately
$1.14 billion goes into unrestricted County general funds.
Taxpayers have under Ala. Const. Sections 42 and 43 a
constitutional right to have this tax liability determined
without retroactive abolition of Circuit court decisions by
an exercise of power to propose constitutional amendments
by the State legislature and pray that this court declare
Act 2015-430 as applied retroactively in this case null and
void in violation of Alabama Constitution Sections 42 and
43.
COUNT 3: DECLARATORY JUDGMENT THAT SB7/ACT 2016-430 MUST
BE TAKEN OFF THE NOVEMBER 8, 2016 BALLOT BECAUSE IT
VIOLATES ART I §13 OF THE ALABAMA CONSTITUTION
30. The proposed Amendment crafted and approved to be
placed on the ballot by the State legislature also violates
Section 13 and Section 22 of the State Constitution. And
comparable provisions in the U.S. Constitution.
31. As a general rule, legislative enactments,
including constitutional amendments, apply only
prospectively.

32. Both § 13 and § 95 of the Constitution of 1901
prohibit the legislature from taking away a vested right-§ 13 does so regardless of whether an action has been
brought upon the right, and § 95 does so after "suit has
been commenced," i.e., after an action has been filed.
33. Section 13 of the Constitution provides 'that
every person, for an injury done him, in his lands, goods,
person, or reputation, shall have a remedy by due process
of law.
34.

It will be noticed that this provision preserves

the right to a remedy for an injury.
35. If the Legislature can take away the result of the
Judgement in the Case, a Taxpayers suit affecting $100
million in new taxes each year for 24 years, it would
destroy vested rights, in violation of § 13 of the
Constitution as well as take away the Taxpayer plaintiffs'
cause of action in the Case, in violation of § 95 of the
Constitution.
36. Under Ala Const Art I Sec 13, Act 2016-430 is an
unconstitutional exercise of legislative power in violation
of Section 13 because reduces Taxpayers disposable income
by adding $2.4 billion in new taxes in Jefferson County.

37.

Act 2016-430 allows for a repeal of §71.01 which

destroys the Taxpayers cause of action on appeal and takes
away the existing judgment declaring invalid

the

validation action for an additional $2.4 billion of taxes
required by Act 2015-226 by giving the public school money
to the County and for legislature’s pet projects. If every
time a Judge renders a decision the legislature can
initiate a constitutional amendment, that does not even
mention and in fact conceals

the true purpose of the

legislation to take away judicial rights,

this means the

courts are not open, in fact, and that persons who get a
remedy adverse to unconstitutional Legislative acts do not
“have a remedy by due process of law”; nor
their

assurance that

“right[s] and justice shall be administered without

sale, denial, or delay” in violation of §13.
38. Wherefore, plaintiff prays for a declaratory
judgment that he Act 2016-430 proposed constitutional
amendment violates Section 13 and due process under Federal
Law because the voters remedy to have Act 2015-226 which
injures their pocketbooks by exacting $2.4 billion in new
taxes declared unconstitutional is being undermined by the
legislature proposing an amendment to take away this voter

enforcement of a voter approved constitutional amendment
448.
COUNT 4: INJUNCTIVE RELIEF THAT THAT SB7/ACT 2016-430
MUST BE TAKEN OFF THE NOVEMBER 8, 2016 BALLOT BECAUSE
IT VIOLATES §95, §§42/43 AND §13 OF THE ALABAMA
CONSTITUTION
39. Plaintiff restates and incorporates the provisions
of paragraphs above in this count 4.
40. Plaintiff hereby requests the court issue an
injunction against Secretary of State John Merrill striking
the Act 2016-430 constitutional amendment now called
Amendment 14 (See Exhibit C) from the November 8, 2016
ballot, or in the alternative deleting all retroactive and
non-prospective provisions thereof.
Dated October 14, 2016

Bob Friedman, Plaintiff.
1623 12th Street South
Birmingham, AL
(205) 902-9487

35205