AlaFile E-Notice

03-CV-2020-900935.00
Judge: GREG GRIFFIN
To: SETH SHELDON ASHMORE
sethashmore@gmail.com

NOTICE OF ELECTRONIC FILING

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA

BARRY MUNZA ET AL V. KAY IVEY, AS GOVERNOR ET AL

03-CV-2020-900935.00

The following matter was FILED on 9/9/2020 10:09:13 PM

C001 MUNZA BARRY

C002 LEWIS LARRY
C003 MATHIS DEBBIE
MOTION TO VACATE OR MODIFY
[Filer: ASHMORE SETH SHELDON]

Notice Date: 9/9/2020 10:09:13 PM

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
9/9/2020 10:09 PM
STATE OF ALABAMA Revised 3/5/08 Case No. 03-CV-2020-900935.00
Unified Judicial System CIRCUIT COURT OF
03-MONTGOMERY District Court Circuit Court MONTGOMERY COUNTY, ALABAMA
CV202090093500
GINA J. ISHMAN, CLERK
CIVIL MOTION COVER SHEET
BARRY MUNZA ET AL V. KAY IVEY, AS Name of Filing Party:C001 - MUNZA BARRY
GOVERNOR ET AL C002 - LEWIS LARRY
C003 - MATHIS DEBBIE

Name, Address, and Telephone No. of Attorney or Party. If Not Represented. Oral Arguments Requested
SETH SHELDON ASHMORE
129 EAST LAUREL STREET
SCOTTSBORO, AL 35768
Attorney Bar No.: ASH019

TYPE OF MOTION
Motions Requiring Fee Motions Not Requiring Fee
Default Judgment ($50.00) Add Party
Joinder in Other Party's Dispositive Motion Amend
(i.e.Summary Judgment, Judgment on the Pleadings, Change of Venue/Transfer
orother Dispositive Motion not pursuant to Rule 12(b))
($50.00) Compel
Judgment on the Pleadings ($50.00) Consolidation
Motion to Dismiss, or in the Alternative Continue
SummaryJudgment($50.00) Deposition
Renewed Dispositive Motion(Summary Designate a Mediator
Judgment,Judgment on the Pleadings, or other Judgment as a Matter of Law (during Trial)
DispositiveMotion not pursuant to Rule 12(b)) ($50.00)
Disburse Funds
Summary Judgment pursuant to Rule 56($50.00)
Extension of Time
Motion to Intervene ($297.00)
In Limine
Other
Joinder
pursuant to Rule ($50.00)
More Definite Statement
*Motion fees are enumerated in §12-19-71(a). Fees Motion to Dismiss pursuant to Rule 12(b)
pursuant to Local Act are not included. Please contact the New Trial
Clerk of the Court regarding applicable local fees.
Objection of Exemptions Claimed
Local Court Costs $ 0 Pendente Lite
Plaintiff's Motion to Dismiss
Preliminary Injunction
Protective Order
Quash
Release from Stay of Execution
Sanctions
Sever
Special Practice in Alabama
Stay
Strike
Supplement to Pending Motion
Vacate or Modify
Withdraw
Other
pursuant to Rule (Subject to Filing Fee)
Check here if you have filed or are filing contemoraneously Signature of Attorney or Party
with this motion an Affidavit of Substantial Hardship or if you
Date:
/s/ SETH SHELDON ASHMORE
are filing on behalf of an agency or department of the State,
county, or municipal government. (Pursuant to §6-5-1 Code
9/9/2020 10:08:01 PM
of Alabama (1975), governmental entities are exempt from
prepayment of filing fees)

*This Cover Sheet must be completed and submitted to the Clerk of Court upon the filing of any motion. Each motion should contain a separate Cover Sheet.
**Motions titled 'Motion to Dismiss' that are not pursuant to Rule 12(b) and are in fact Motions for Summary Judgments are subject to filing fee.
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ELECTRONICALLY FILED
9/9/2020 10:09 PM
03-CV-2020-900935.00
CIRCUIT COURT OF
MONTGOMERY COUNTY, ALABAMA
GINA J. ISHMAN, CLERK
IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA

BARRY MUNZA,
LARRY LEWIS,
DEBBIE MATHIS,

Plaintiffs,
v. Civil Action No. CV-2020-900935

GOVERNOR KAY IVEY

in her official capacity as Governor
of the State of Alabama, and
SCOTT HARRIS
in his official capacity as State Health
Officer of Alabama,
ALABAMA STATE BOARD OF
HEALTH,

Defendants.

PLAINTIFFS’ MOTION TO ALTER AMEND OR VACATE AND MOTION FOR

LEAVE TO SUPPLEMENT THE PLEADINGS

COME NOW the Plaintiffs and pursuant to Rule 59 of the Alabama Rules of Civil
Procedure, move this Court to Alter, Amend, or Vacate its Order dated August 11, 2020,
and as grounds therefore would show unto the Court as follows:

1) The Governor is subject to the rule making requirement of the APA and
failed to comply therewith.

The Governor promulgated a rule when she issued her July 15 and July 29

Proclamations. In doing such, the Governor subjected herself to the statutory scheme of

the Alabama Administrative Procedure Act (APA), yet the Governor failed to comply

with the APA.

“Every state agency having express statutory authority to adopt rules shall be

governed by the provisions of this chapter...” Ala. Code § 41-22-2. An “agency” is

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“every... department, officer” of the state. Ala. Code § 41-22-3 (emphasis added). The

Alabama Constitution created the “executive department” to consist of the “governor”.

Ala. Const. art. V, § 112 (1901) (emphasis added). Additionally, “[t]he Governor is the

chief executive officer of the state.” Parker v. Amerson, 519 So. 2d 442, 444 (Ala. 1987)

(emphasis added).

In Ex parte Traylor Nursing Home, Inc., the Alabama Statewide Health

Coordinating Council proposed a rule and was submitted to the Governor for approval.

Ex parte Traylor Nursing Home, Inc., 543 So. 2d 1179 (Ala. 1988). The Supreme Court

stated that if the Governor adopted the rule then the Governor was responsible for

complying with the APA because it affected the public’s rights. Id. at 1186.

Ex parte Traylor Nursing Home, Inc. has been cited with approval by the Supreme

Court of Mississippi in Fordice v. Thomas, 649 So. 2d 835 (Miss. 1995) as one of the

determinative cases to include Mississippi’s Governor as being subject to its own similar

version of the APA.

The Governor did not comply with the requirements of the APA. Therefore, this

Court should hold that the Governor’s Proclamation is void and unenforceable.

2) The Plaintiffs have standing to challenge the Governor’s Proclamation.

Longstanding jurisprudence allows the Plaintiffs to bring this action without first

exposing themselves to actual arrest or prosecution. “A party establishes standing to

bring a... challenge... when it demonstrates the existence of (1) an actual, concrete and

particularized ‘injury in fact’ – ‘an invasion of a legally protected interest’; (2) a ‘causal

connection between the injury and the conduct complained of’; and (3) a likelihood that

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the injury will be ‘redressed by a favorable decision.’” Lujan v. Defenders of Wildlife,

504 U.S. 555, 560–61 (1992). Recently, our Court of Civil Appeals adopted the holding

in Lujan, explaining that the plaintiffs have standing when the threat of injury is actual

or imminent. Keith v. LeFleur, 256 So. 3d 1206, 1211 (Ala. Civ. App. 2018). The Court

of Civil Appeals later reaffirmed that proposition again in Smith v. Lefleur, No. 2180375,

2019 Ala. Civ. App. LEXIS 141, at 14 (Civ. App. Oct. 11, 2019). In the case before this

Court, the threat of injury is imminent. The Plaintiffs are at risk of incarceration at all

times when they are in buildings “open to the public” and when within 6 feet of another

person without wearing an amorphous mask or “other facial covering”.

In Tom Parker v. Alabama Judicial Review Commission, the court noted that the

United States Supreme Court has stated that “a [preenforcement] plaintiff satisfies the

injury-in-fact requirement where he alleges ‘an intention to engage in a course of conduct

arguably affected with a constitutional interest, but proscribed by a statute, and there

exists a credible threat of prosecution thereunder.’” Parker v. Judicial Inquiry Comm'n of

Ala., No. 2:16-CV-442-WKW, 2017 U.S. Dist. LEXIS 140601, at 12 (M.D. Ala. Aug. 31,

2017).

3) The Governor is barred by the Constitution of the State of Alabama from

suspending laws.

Section 21 of the Constitution of the State of Alabama explicitly states “[t]hat no

power of suspending laws shall be exercised except by the legislature.” Ala. Const. art. I,

§ 21 (1901). Amongst the other powers already outlined that the legislature cannot

delegate, the power to suspend laws is yet another. “The legislature cannot authorize

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suspension of law by another agency, even where the legislature itself has the power to

suspend the law.” Op. of Justices, 345 So. 2d 1354, 1357 (Ala. 1977) (citing Montgomery

v. State, 163 So. 365 (1935)).

Here, the Governor suspended all laws that “conflicts with any provision of state

law” “for the duration of this state of emergency.” See Pl. M. to Suppl. Ex. A.

(emphasis added). In the multitude of reasons why the Governor’s Proclamations are

unenforceable, the Governor illegally suspended law, in contravention to the plain words

of the Constitution. Said illegal suspension of laws is without an end date, as the “state

of emergency” has now lasted six (6) months.

4) The Governor’s Proclamation is void for vagueness.

The Court of Criminal Appeals has stated

As generally stated, the void-for vagueness doctrine requires that a

penal statute define the criminal offense with sufficient
definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and
discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352
(1983). A statute challenged for vagueness must therefore be
scrutinized to determine whether it provides both fair notice to the
public that certain conduct is proscribed and minimal guidelines to
aid officials in the enforcement of that proscription. See Kolender,
supra; Grayned v. City of Rockford, 408 U.S. 104 (1972). If the
statute either forbids or requires the doing of an act in terms so
vague that men of common intelligence must necessarily guess at
its meaning and differ as to its application, it is void for vagueness.
Connally v. General Construction Co., 269 U.S. 385, 391 (1926).

Timmons v. City of Montgomery, 641 So. 2d 1263, 1264 (Ala. Crim. App. 1993) (quoting
McCorkle v. State, 446 So. 2d 684, 685 (Ala. Crim. App. 1983)).

Further,

The void for vagueness doctrine… protects against legislation

providing insufficient warning of what conduct is unlawful. E.g.,
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455

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U.S. 489 (1982). The doctrine was stated by the United States
Supreme Court in Kolender v. Lawson, 461 U.S. 352 (1983), as
follows: … the void-for-vagueness doctrine requires that a penal
statute define the criminal offense with sufficient definiteness that
ordinary people can understand what conduct is prohibited and in a
manner that does not encourage arbitrary and discriminatory
enforcement. (Citations omitted.) The Court in Kolender, supra,
further opined that the most important aspect of the void-for-
vagueness doctrine is not actual notice, but the other principal
element of the doctrine -- the requirement that a legislature
establish minimal guidelines to govern law enforcement, quoting
Smith v. Goguen, 415 U.S. 566 (1974). These minimal guidelines
should be provided in order to avoid a standardless sweep [that]
allows policemen, prosecutors and juries to pursue their personal
predilections. Smith, supra, at 575.

Id. (quoting Kerr v. State, 474 So. 2d 142, 144 (Ala. Crim. App. 1984)).

The Proclamation does not define what constitutes a “mask” or “other facial

covering”. Nor does the Proclamation define any of the “places” where a mask is

required. Furthermore, whether and at what times someone is exempt is subjectively up

to the person at that given moment in time. The police officer who seizes someone for a

possible violation must conduct an instant investigation to which is mainly premised

upon the subjective intentions of the wearer and whether that person is exempt. There is

virtually no objectivity to the test of this mask mandate. In order to not be hauled to jail,

the wearer must then prove himself innocent to the satisfaction of the police that he is

indeed subjectively enough exempt, all of which violates his 5th Amendment right to be

free from self-incrimination.

5) The Plaintiffs further move this Court for leave to supplement their initial
pleadings.

Since the initial filing of this action, the Governor has amended and updated her

Proclamations two times. The Plaintiffs moved this Court for leave to supplement their

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pleadings on August 5, 2020 to include the Proclamation dated July 29, 2020. The

Plaintiffs now move this Court to supplement their pleadings again to include the

Governor’s Proclamation dated August 27, 2020, which is substantially similar to the

prior Proclamation, but extends the “emergency” to October 2, 2020. Attached to this

Motion is the Governor’s Proclamation incorporating the State Health Officer’s Order.

(Exhibit A).

WHEREFORE, the Plaintiffs request this Court Alter, Amend, or Vacate its

August 11, 2020 and GRANT the Plaintiffs’ request for injunctive relief and deny the

Defendants’ Motion to Dismiss, and grant the Plaintiffs’ request to supplement their

pleadings as stated above.

DATED THIS 9th DAY OF September, 2020.

Respectfully submitted,

/s/ Seth S. Ashmore

SETH S. ASHMORE (ASH019)
Attorney for Plaintiffs
129 East Laurel Street
Scottsboro, AL 35768
(256) 574-2546
sethashmore@gmail.com

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CERTIFICATE OF SERVICE

I hereby certify that on this 9th day of September, 2020, I filed the foregoing
Motion to Alter, Amend, or Vacate with the Clerk of the Court, which will serve all
counsel listed below, by electronically filing same with the AlaFile system:

Brad A. Chynoweth
A. Reid Harris
Assistant Attorneys General
501 Washington Street
Montgomery, AL 36130
(334) 242-7300
Brad.Chynoweth@AlabamaAG.gov
Reid.Harris@AlabamaAG.gov

/s/ Seth S. Ashmore

SETH S. ASHMORE

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