John Plunk, in his official capacity as chairman of the Alabama Ethics Commission v. Irva E. Reed (Appeal from Montgomery Circuit Court: CV-24-900057).

• Court: Supreme Court of Alabama
• Decided: January 17, 2025
• Docket: SC-2024-0021
• Status: Published

Opinion

Rel: January 17, 2025

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA OCTOBER TERM, 2024-2025

_________________________

SC-2024-0021 _________________________

John Plunk, in his official capacity as Chairman of the Alabama Ethics Commission, et al.

v.

Irva E. Reed

Appeal from Montgomery Circuit Court (CV-24-900057)

MITCHELL, Justice.

Irva E. Reed seeks to appear on the ballot for an election that has

already taken place. Because Reed's claim is moot, and because no cited

exception to mootness applies, we must dismiss this appeal. SC-2024-0021

Facts and Procedural History

Reed sought to run for a seat on the Montgomery County

Commission in 2024. As required to appear on the primary ballot, she

submitted her qualifying papers to the Montgomery County Democratic

Party ("the Party") in November 2023. At that time, Reed confirmed that

she would submit a "Statement of Economic Interests" ("SEI") to the

Alabama Ethics Commission ("the Commission") within five days as

mandated by § 36-25-15(a), Ala. Code 1975. But she failed to do so,

waiting to file her SEI until 41 days after submitting her qualifying

papers.

On the same day that Reed filed the tardy SEI, Thomas Albritton,

the Director of the Commission, informed the Party that Reed was not

qualified to appear on the ballot. Reed then asked the Commission to

grant her a five-day extension to file her SEI and to qualify her as a

candidate. In support of this request, she provided the Commission with

an affidavit stating that an illness had prevented her from timely filing

her SEI. Nevertheless, the Commission denied her request for a deadline

extension in early January 2024.

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Reed then sued Albritton; John Plunk, the Chairman of the

Commission; and Wes Allen, the Secretary of State ("the defendants"), in

their official capacities, in the Montgomery Circuit Court, seeking a

judgment declaring that her illness had prevented her from timely filing

the SEI and an injunction that would place her name on the ballot.

The trial court granted Reed's request for a preliminary injunction,

ordering the Commission and the Party to certify Reed as a candidate.

Had that ruling been enforced, it would have required reprinting the

ballots with Reed's name. At that point, however, the defendants

appealed the trial court's order, and we stayed the injunction while we

addressed the appeal.

Standard of Review

The facts underlying the preliminary injunction are undisputed,

and the only issues are legal questions. In this circumstance, our Court

reviews the entry of a preliminary injunction de novo. Ex parte Folsom,

42 So. 3d 732, 737 (Ala. 2009).

Analysis

Reed seeks to appear on the primary ballot in an election that has

already occurred. But a judgment in Reed's favor at this point would not

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" 'affect the rights of the parties.' " See Chapman v. Gooden, 974 So. 2d

972, 983-84 (Ala. 2007) (citation omitted) (explaining that, even if an

action arose from a justiciable controversy, it cannot be maintained on

appeal if the questions raised have been mooted by later events). As a

result, her claim is moot.

Our election-law precedents bolster this conclusion. For example,

in Ex parte Connors, 855 So. 2d 486, 488 (Ala. 2003), this Court held that

"the question whether [a challenged candidate's] name should have

appeared on the ballots has been mooted by the election results."

(Emphasis omitted). Similarly, in Bell v. Eagerton, 908 So. 2d 204 (Ala.

2002), we held that a plaintiff's post-election challenge to his

disqualification as a candidate was moot. In those cases, as here,

rendering judgment would have been "purely academic." Connors, 855

So. 2d at 489.

Even so, Reed argues that three exceptions to our mootness

doctrine preserve her claim: (a) capable of repetition but evading review;

(b) public interest; and (c) collateral rights. As discussed below, none of

these exceptions apply.

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A. Capable of Repetition But Evading Review

Reed first argues that the capable-of-repetition-but-evading-review

exception saves her claim. This exception applies when there is a

"significant issue that cannot be addressed by a reviewing court because

of some intervening factual circumstance, most often that the issue will

be resolved by the passage of a relatively brief period of time." McCoo v.

State, 921 So. 2d 450, 458 (Ala. 2005). We have often applied this

exception to election-law challenges "because the interpretation [at issue]

could impact future elections." Griggs v. Bennett, 710 So. 2d 411, 412 n.4

(Ala. 1998).

But Reed has the burden of demonstrating that this exception

applies, and she fails to meet that burden. See Gaines v. Smith, 379 So.

3d 411, 418 (Ala. 2022) (plurality opinion) (affirming dismissal of

plaintiff's claims as moot because the appellant failed to "meet his burden

of establishing that his claims … meet the [capable-of-repetition-but-

evading-review] exception to mootness"). Reed does little to demonstrate

that the defendants' discrete application of § 36-25-15(a) is a significant

issue as required under McCoo. See 921 So. 2d at 458. She has made no

argument that the challenged interpretation of the statute is as

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significant as necessary for the exception to apply. See id. at 459.

Instead, Reed relies merely on conclusory assertions that the defendants

will "misapply" the statute again. As a result, Reed has failed to meet

her burden, and the capable-of-repetition-but-evading-review exception

does not apply.

B. Public Interest

Reed next argues that the public-interest exception should preserve

her claim. The criteria for applying this exception are "(1) 'the public

nature of the question,' (2) 'the desirability of an authoritative

determination for the purpose of guiding public officers,' and (3) 'the

likelihood that the question will generally recur.' " Barber v. Cornerstone

Cmty. Outreach, Inc., 42 So. 3d 65, 75 (Ala. 2009) (quoting Chapman, 974

So. 2d at 989) (other citations omitted). We construe this exception

narrowly. Mills v. City of Opelika, 320 So. 3d 554, 562 (Ala. 2020) (citing

Chapman, 974 So. 2d at 989).

Reed does not clear even the first hurdle for establishing this

exception. Demonstrating the "public nature" of a question requires

presenting a "pressing issue of great public concern across Alabama."

Mills, 320 So. 3d at 563. For example, we have held that the legality of

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gambling, which has been "hotly debated … throughout the State for a

number of years," fits the exception. Id. at 564. By contrast, issues like

"the legality of automated traffic-enforcement cameras," which do not

generate broad public controversy, fail to do so. Id.

Reed has failed to show here that the interpretation of § 36-25-15(a)

is a question of a "public nature." See Mills, 320 So. 3d at 564. She has

not demonstrated that there is a great public debate over this statute or

that its application presents a "pressing issue of great public concern."

Id. And she has not demonstrated that this is an issue that excites

passion and consumes the "whole public." See Mills, 320 So. 3d at 563-

64. Consequently, the public-interest exception does not save her claim.

C. Collateral Rights

Finally, Reed argues that the collateral-rights exception preserves

her claim. This exception allows courts to hear an otherwise moot appeal

when, "if no decision … is made …, collateral rights of the parties

dependent upon its decision will be left undetermined." Grant v. City of

Mobile, 50 Ala. App. 684, 688, 282 So. 2d 285, 288 (Civ. App. 1973). Reed

argues that questions related to § 36-25-15(a), such as when an SEI is

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due and to whom, are sufficient to meet the requirements of this

exception.

But the "collateral rights" that Reed cites are not collateral at all.

Questions of when and how to submit an SEI are core to Reed's claim,

not collateral. Indeed, her requested relief depends on how this Court

decides those questions. Calling these "collateral rights" does not make

them so. And Reed does not cite any other rights that could plausibly be

considered collateral to her argument.

We rejected a similar attempt to shoehorn primary rights into the

collateral-rights exception in Bell, 908 So. 2d at 205. There, we held that

an appeal was moot even though the appellant had argued that his

constitutional rights -- the same rights underpinning his initial

complaint -- were "collateral rights" demanding a ruling. Id. at 205-07.

To the contrary, those "collateral rights" were the primary rights at issue.

Because Reed similarly argues that her core rights under § 36-25-15(a)

are collateral here, the collateral-rights exception does not apply and does

not preserve her claim.

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Conclusion

Reed's claim is moot. And although Reed cites several exceptions

to mootness, none of them apply. As a result, we dismiss this appeal with

instructions to the trial court to dissolve the injunction and dismiss

Reed's complaint.

APPEAL DISMISSED.

Parker, C.J., and Shaw, Wise, Bryan, Mendheim, Stewart, and

Cook, JJ., concur.

Mitchell, J., concurs specially, with opinion.

Sellers, J, concurs in the result.

9 SC-2024-0021

MITCHELL, Justice (concurring specially).

I concur fully with the majority opinion. But I write separately

because I believe we should narrow our Court's standard for applying the

capable-of-repetition-but-evading-review exception. In particular, I

believe we should apply the exception only when there is a demonstrable

likelihood that the challenged action will injure the plaintiff again.

Narrowing the exception in this way would align our mootness doctrine

with the original meaning of the judicial power, the separation-of-powers

structure of our State Constitution, see Ala. Const. 2022, art. III, § 42,

and art. VI, § 139, and our precedent, see, e.g., State ex rel. Eagerton v.

Corwin, 359 So. 2d 767, 769 (Ala. 1977).

As the majority opinion discusses, the capable-of-repetition-but-

evading-review exception currently applies when there is a "significant

issue that cannot be addressed by a reviewing court because of some

intervening factual circumstance, most often that the issue will be

resolved by the passage of a relatively brief period of time." McCoo v.

State, 921 So. 2d 450, 458 (Ala. 2005). And, as the majority opinion also

notes, we have often applied this exception to election-law challenges

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"because the interpretation [at issue] could impact future elections."

Griggs v. Bennett, 710 So. 2d 411, 412 n.4 (Ala. 1998).

But our expansive application of the exception to election-law

challenges is based on a misguided and out-of-date federal rule that the

United States Supreme Court first announced in Moore v. Ogilvie, 394

U.S. 814, 816 (1969). In Moore, the Court applied the capable-of-

repetition-but-evading-review exception to a post-election challenge,

reasoning that the challenged action would affect the general voting

populace in the future. 394 U.S. at 816. Several years later, this Court

adopted the Moore formulation in State ex rel. Kernells v. Ezell, 291 Ala.

440, 444, 282 So. 2d 266, 270 (1973).

After Kernells, however, the United States Supreme Court

corrected itself by narrowing the exception at the federal level. In

Weinstein v. Bradford, 423 U.S. 147 (1975), the Court clarified that the

exception applies only when "(1) the challenged action is in its duration

too short to be fully litigated prior to its cessation or expiration, and (2)

there is a reasonable expectation that the same complaining party would

be subjected to the same action again." 423 U.S. at 149 (emphasis added).

The Court based this narrower exception on the "historical developments

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of the mootness doctrine," recognizing that this approach better conforms

to traditional mootness principles. Weinstein, 423 U.S. at 148. Even so,

Moore continued to limp along, and our Court continued to apply it. But

recently, the United States Supreme Court confirmed that it will apply

Weinstein's narrow exception going forward. United States v. Sanchez-

Gomez, 584 U.S. 381, 391 (2018); see also Shemwell v. City of McKinney,

63 F.4th 480, 484 (5th Cir. 2023); Kircher v. City of Ypsilanti, 809 F.

App'x 284, 296 (6th Cir. 2020); Hall v. Secretary, State of Alabama, 902

F.3d 1294, 1297 (11th Cir. 2018).

While we are under no obligation to interpret the Alabama

Constitution in a way that mirrors the federal Constitution, it is clear to

me that Weinstein's narrower formulation better reflects our State's legal

tradition. For one thing, the Weinstein formulation reflects the limits on

the judicial power. See 3 William Blackstone, Commentaries on the Laws

of England *25. In his seminal legal treatise, William Blackstone wrote

that the judicial power is the power "to examine the truth of the fact …,

and, if any injury appears to have been done, to ascertain and by its

officers to apply the remedy." Id. (emphasis added). In doing so,

Blackstone reasoned that remedying an invaded legal right, complained

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of by the injured party, is essential to the act of judging. Id. Thus, when

a court can no longer remedy a plaintiff's injury, the judicial power no

longer extends.

The United States Supreme Court's jurisprudence reflects this

understanding of the judiciary's role. In 1895, the Court wrote that "[t]he

duty of this court, as of every other judicial tribunal, is to decide actual

controversies by a judgment which can be carried into effect." Mills v.

Green, 159 U.S. 651, 653 (1895) (emphasis added). The Court added that

"when, pending an appeal …, an event occurs which renders it impossible

for this court … to grant [the plaintiff] any effectual relief whatever, the

court will not proceed to a formal judgment, but will dismiss the appeal."

Id. This idea does not flow from the specific language of Article III of the

United States Constitution. Instead, it comes from the very nature of the

judicial power -- the same power that this Court wields under the

Alabama Constitution. See Ala. Const. 2022, art. VI, § 139.

The history of equity confirms that, to wield the judicial power, a

court must be able to meaningfully redress a plaintiff's injury. For

centuries, instituting a suit in equity has required a "prayer for relief."

Charles Barton, History of a Suit in Equity: From Its Commencement to

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Its Final Termination, 47 (Robert Clarke & Co., 1877). That relief may

be either "special," the relief that the plaintiff believes is necessary to

rectify his injury, or "general," the relief that the court believes the case

"requires." Id. And it implies that the relief must be of a kind that would

resolve the complained-of injury. Indeed, the very purpose of equitable

remedies is to provide relief when legal remedies cannot. See Samuel L.

Bray & Paul B. Miller, Getting Into Equity, 97 Notre Dame L. Rev. 1763,

1792 (2022). That is why suits in equity require that "[p]etitioners pray[]

for a just, fair, or equitable remedial resolution of a specific problem." Id.

(emphasis added). Our Court's power, then, does not extend to providing

equitable relief when doing so would not resolve the plaintiff's complaint.

Another reason to adopt the narrower exception is because it better

conforms to the separation-of-powers structure of our State Constitution.

See Ala. Const. 2022, art. III, § 42. When there is no live controversy, a

decision is little more than an advisory opinion. See Hall v. Beals, 396

U.S. 45, 48 (1969) (noting that a "live controversy … must exist if [a court

is] to avoid advisory opinions on abstract propositions of law"). And when

we issue an advisory opinion, our Court "impos[es] its methods or

substitut[es] its judgment" for that of the Legislature's, thereby

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infringing on the Legislature's plenary powers. Finch v. State, 271 Ala.

499, 504, 124 So. 2d 825, 830 (1960); see also Sheppard v. Dowling, 127

Ala. 1, 6, 28 So. 791, 793 (1900). Therefore, our Court erodes the

separation of powers when we decide a case that is no longer live and in

which we cannot remedy the plaintiff’s injury.

Finally, the narrower exception better accords with our precedents

in which we have held that a case is moot when there is no longer a

"justiciable controversy." See Corwin, 359 So. 2d at 769. Previously, we

have held that a justiciable controversy is one that is "'definite and

concrete, touching the legal relations of the parties in adverse legal

interest, and … admitting of specific relief through a [judgment].'"

MacKenzie v. First Alabama Bank, 598 So. 2d 1367, 1370 (Ala. 1992)

(quoting Copeland v. Jefferson Cnty., 284 Ala. 558, 561, 226 So. 2d 385,

387 (1969)). But the broad exception that we have applied since Kernells

has permitted our Court to grant relief that does not bear "concrete[ly]"

on the relations between the plaintiff and the defendant and that does

not "specific[ally]" relieve the plaintiff's complained-of injury. Id.

Narrowing the exception, therefore, would bring harmony to our

mootness doctrine.

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In light of the above, I believe we should narrow the capable-of-

repetition-but-evading-review exception and apply it only when there is

a demonstrable likelihood of the plaintiff suffering the complained-of

injury again. In an appropriate future case, in which our current capable-

of-repetition-but-evading-review exception properly applies, I would

welcome briefing asking us to do so.