IN THE SUPREME COURT OF ALABAMA CASE NUMBER 1140676
Transcription
IN THE SUPREME COURT OF ALABAMA CASE NUMBER 1140676
IN THE SUPREME COURT OF ALABAMA CASE NUMBER 1140676 Donald Curtis Casey, et al. Appellant Relators v. Senator Del Marsh, Appellee Respondent Appeal from the Circuit Court of Montgomery County, Alabama 03-CV-2014-00043000 ___________________________________________________________________________________ Relator's Appeal Brief Donald Curtis Casey 1129, 1st Av Pleasant Grove, Alabama 35127 Phone: 205 542 1730 Email: dcasey@dcasey.org There is no reason this document should not be made available to the public on an on line electronic database. 1 Of 26 STATEMENT REGARDING ORAL ARGUMENT Relators do not request oral argument. 2 Of 26 TABLE OF CONTENTS PAGE STATEMENT REGARDING ORAL ARGUMENT................................................................................2 STATEMENT OF JURISDICTION..........................................................................................................4 TABLE OF AUTHORITIES......................................................................................................................5 STATEMENT OF THE CASE...................................................................................................................7 STATEMENT OF THE ISSUES..............................................................................................................12 STATEMENT OF FACTS.......................................................................................................................13 STATEMENT OF THE STANDARD OF REVIEW...............................................................................15 SUMMARY OF THE ARGUMENT.......................................................................................................17 ARGUMENT...........................................................................................................................................18 3 Of 26 STATEMENT OF JURISDICTION This Court has jurisdiction over this matter pursuant to: Alabama Constitution Article VI § 140 Alabama Code § 12-2-7 (2) Alabama Code § 6-6-591 4 Of 26 TABLE OF AUTHORITIES CASES ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2010-2011 2100048 2011.AL.0000060 February 11, 2011 TOWN OF WESTOVER v. JAMES BYNUM AND J&F ENTERPRISES, LLC, D/B/A; SUPREME COURT OF ALABAMA OCTOBER TERM, 2008-2009 No. 1061727, 2009.AL.0000057 January 30, 2009 MOBILE GAS SERVICE CORPORATION v. ROSA ROBINSON, INDIVIDUALLY AND AS ADMINISTRATRIX AND PERSONAL REPRESENTATIVE OF THE ESTATE OF HARRIETT ROBINSON, DECEASED, AND AS MOTHER AND NEXT FRIEND OF DAVID MCMEANS, KELVIN MCMEANS, AND HARRIETT JOHNSON Appeal from Mobile Circuit Court, (CV-05-3587). Alabama Supreme Court in State, ex rel. Weatherly, et al. v. Birmingham Water Works Co. 185 Ala. 388; 64 So. 23; 1913 Ala. LEXIS 667 Baker v. State ex rel. Green, 222 Ala. 467, 133 So. 291 BIRMINGHAM BAR ASS'N v. PHILLIPS & MARSH et al. 6 Div. 604. SUPREME COURT OF ALABAMA 239 Ala. 650; 196 So. 725; 1940 Ala. LEXIS 414 PAGE 15 21, 23 19 15, 22 Frost v. Clements, 153 Ala. 654, 45 So. 203 19 GUY HUNT, ETC., ET AL. v. DECATUR CITY BOARD OF EDUCATION, ET AL. AL.2270 628 So. 2D 393 August 27, 1993 21 Leigh v. State, 69 ALA. 261, 266 (1881) Moore v. Brown, 52 U.S. (11 How.) 414, 428 (1850) P. C. WHITE v. STATE ex rel. Conrad M. FOWLER, Solicitor No. 7 Div. 243 Supreme Court of Alabama 262 Ala. 694; 81 So. 2d 267; 1955 Ala. LEXIS 524 10, 23 15 16, 19 U.S. Supreme Court Stone v. Mississippi, 101 U.S. 814 (1879) 20 SUPREME COURT OF ALABAMA Ex parte Sarah Janie Hicks;(In re: Sarah Janie Hicks v. State of Alabama) 1110620 2014.AL.0000105 April 18, 2014 15 Roberts v. Bailey, 228 Ala. 222, 153 So. 432 19 STATE ex rel. CHAMBERS v. BATES. 1 Div. 942. SUPREME COURT OF ALABAMA 233 Ala. 251; 171 So. 370; 1936 Ala. LEXIS 436 State, ex rel. Knox v. Dillard, et al. SUPREME COURT OF ALABAMA 196 Ala. 539; 72 So. 56; 1916 Ala. LEXIS 457 State v. Manley 441 So.2d 864 (1983) 15, 19 15 9, 18, 21 Sharp v. State, 217 Ala. 265, 115 So. 392 19 Water Works and Sewer Board of the City of Prichard v. The Board of Water and Sewer Commissioners of the City of Mobile d/b/a Mobile Area Water and Sewer Service System No. 1120630 Supreme Court of Alabama September 13, 2013, 21 5 Of 26 CONSTITUTIONAL PROVISIONS Article XVIII § 286 Article IV § 56 12, 13, 18 19, 23 ALABAMA CODE 6-6-591 6 Of 26 4, 20, 23 STATEMENT OF THE CASE 1. Donald Curtis Casey, Herb Whittington, William G. Anthony, Franklin R. Dillman, Marion Franklin Patrick, Steve Phillips, Lou Campomenosi, Patricia S. Godwin,Cecil Godwin, Jr., Phillip Joe Hartline, Ed Bowman, and Kenneth L. Freeman, Relators, presented on February 4th, 2014 a private Quo Warranto1. The Quo Warranto sought to utilize the wisdom found in Matthew 5:25 to resolve, without the expenditure of public resources (trial), the question regarding the Legislature's authority2 to revise the Alabama Constitution without first placing before the people of Alabama the question of “convention or no convention”3. 2. 3. Senator Marsh, Respondent did not respond. The Relators on February 20th, 2014 noticed Senator Marsh with a statement of “Facts”4. The statement of “Facts” noticed Senator Marsh that he did not respond to the query posed in the Quo Warranto. 4. The Relators on July 2nd, 2014 filed in the FIFTEENTH JUDICIAL CIRCUIT COURT OF ALABAMA MONTGOMERY COUNTY “INFORMATION FROM THE RELATORS ON BEHALF OF THE PEOPLE OF ALABAMA SEEKING A WRIT OF QUO WARRATNO” 5. 5. Senator Marsh through Jeffery Long, Assistant Attorney General filed on August 7th, 2014 a “MOTION FOR A MORE DEFINITE STATEMENT”6 and a BRIEF IN SUPPORT OF MOTION FOR A MORE DEFINITE STATEMENT7. The conclusion on pages 46 through 47 in the BRIEF asserts 1 2 3 4 5 6 7 See 03CV201400043000-ROA-V1-B.pdf pages 22 through 27 IBID Page 25 Alabama Constitution Article XVIII § 286 See 03CV201400043000-ROA-V1-B.pdf pages 28 through 31 IBID pages 6 through 21 IBID pages 41 through 42 IBID pages 43 through 48 7 Of 26 that the Relators are Plaintiffs, and that as such the action brought “does not include a proper prayer for relief nor does the Complaint state any legal injury for which Plaintiffs' are entitled to relief.” 6. The Honorable William A. Shashy, on August 8th, 20148 granted Assistant Attorney General Long's motion and set a hearing for August 14th, 2014. 7. The Relators submitted, on August 13th, 2014 an “OBJECTION TO “MOTION FOR A MORE DEFINITE SATEMENT”9 and a “PETITION TO CLARIFY THE INFORMATION SUBMITTED BY THE RELATORS”10. The former objected to the transposing nature of the Assistant Attorney General's “MOTION FOR A MORE DEFINITE STATEMENT”. To wit: Relators to PLAINTIFFS Respondent to DEFENDANT Information to Complaint INFORMATION FROM THE RELATORS ON BEHALF OF THE PEOPLE OF ALABAMA SEEKING A WRIT OF QUO WARRANTO to a justiciable controversy. 8. The latter noted in item 1711 that Senator Marsh, Respondent failed to respond to the query (Quo Warranto) to provide the authoritative instrument “wherein the Alabama Legislature is granted the right and / or authority to revise the Constitution without the vote of the people wherein delegates are elected to a convention”. 9. August 14th, 2014 a hearing12 was held before the Honorable William A. Shashy in which there was obviously confusion regarding the nature of a Quo Warranto. Mr. Casey explained that “A quo warranto is a writ – an extraordinary writ, different from mandamus, demanding from the authority, an officer of the state – whatever that office might be – to come forward with his authority to act13”. Judge 8 9 10 11 12 13 See 03CV201400043000-ROA-V1-B.pdf page 50 IBID page 51 IBID page 54 IBID page 56 03CV201400043000-ROA-V2-B.pdf pages 1 through 6 IBID page 4 8 Of 26 Shashy ruled14 that the Relators had provided a “definite statement” and therefore a response must be brought forth. 10. Franklin Robert Dillman, Relator et. al. on August 14th, 2014 submitted a NEEDFUL CLARIFICATION. To wit: “Del Marsh, Senator is to bring forth the instrument wherein the Alabama Legislature is authorized to propose to the people any amendment to the Alabama Constitution which would result in, after an affirming vote of the people a major alteration, or revision thereof beyond that which a reasonable individual would deem short and simple.” State v. Manley 441 So.2d 864 (1983) “Thus, the purpose of the legislative mode is to bring about amendments which are few and simple and independent; and on the other hand, that of the mode through Conventions is to revise the entire Constitution, with a view to propose either a new one, or, as the greater includes the less, to propose specific and particular amendments to it”. “......if a revision is or may be desired, the mode by a Convention only is appropriate, or, as we expect to show, permissible.” 11. Senator Marsh by and through Assistant Attorney General Long filed, on August 22nd, 2014 a MOTION TO DISMISS15 and a MEMORANDUM IN SUPPORT OF MOTION TO DISMISS16. The 14 IBID pages 5 through 6 15 See 03CV201400043000-ROA-V1-B.pdf page 69 through 70 16 See 03CV201400043000-ROA-V1-B.pdf page 71 through 91 9 Of 26 assertion made by Senator Marsh by and through Assistant Attorney General Long's MEMORANDUM that the “Relators may only use a valid writ of quo warranto to challenge a legislator's right to hold public office17” is negated by the following statements: [A writ of quo warranto] inquires by what right the person proceeded against exercises official authority...” Leigh v. State, 69 ALA. 261, 266 (1881) “A writ of quo warranto serves to answer whether Senator Marsh lawfully holds the office of Senator and whether he rightfully exercises his duties and powers”.18 “A writ of quo warranto may either inquire by what authority a person holds a public office or by what authority a person exercises official powers”. “the Alabama Supreme Court held that a writ of quo warranto “inquires by what right the person proceeded against exercises official authority...”19 12. The aforementioned renders Senator Marsh's immunity from answering a query regarding the authority authorizing his action null and void. 13. Judge Shashy, on August 25th, 2014 ordered a hearing set for October 15th, 2014. 14. The Relators filed on September 22nd, 2014 a PETITION TO STRIKE RESPONDENT'S 17 See 03CV201400043000-ROA-V1-B. pdf page 73 18 IBID page 82 19 IBID page 84 10 Of 26 MOTION TO DISMISS20, MEMORANDUM IN SUPPORT OF MOTION TO STRIKE21, PETITION FOR SUMMARY JUDGMENT22 and a MEMORANDUM IN SUPPORT OF PETITION FOR SUMMARY JUDGMENT23 15. The Relators MEMORANDUM IN SUPPORT OF MOTION TO STRIKE noticed all parties of a fiduciary24 responsibility which an individual assumes on entry into public office25; and that if, the people are required to know26 the law - no less can be expected of a four term Senator27. 16. During the October 15th, 2014 proceeding Mr. Casey stated that Senator Marsh “is revising the Constitution through the amendment process without putting the vote or the question before the people of convention or no convention”. To which the COURT replied - “He can't do that”. The proceeding concluded with Judge Shashy's statement - “All right. Well, I will look at all of this, and I'll get y'all something out”. 17. The Court dismissed the matter with prejudice on March 6th, 2015. This appeal to the Alabama Supreme Court followed on March 18th, 2015. 20 21 22 23 24 25 26 27 IBID page 93 through 94 IBID page 116 through 146 IBID page 147 through 148 IBID page 149 through 161 See 03CV201400043000-ROA-V1-B. pdf page 116 IBID page 122 IBID page 125 through 127 IBID paragraph 15 page 125 11 Of 26 STATEMENT OF THE ISSUES Several broad issues arise from the action brought by the people in this appeal. 1. Are trustees of the public well being immune from queries (Quo Warranto) posed by the people to ascertain the authority that enables their action? 2. Did the trial court transpose the query (Quo Warranto) from “authority to act” into a query seeking “the motivation for a legislative act”28? 3. Does claiming the cloak of governmental immunity by an Official, a trustee, when a query (Quo Warranto) demands him to bring forth the authority for his action render the American experiment in limited selfgovernment null and void? 4. Was the private right of the Relators as well as the right of the public, as specified in Article XVIII § 286 of the Alabama Constitution to determine the question of “convention” or “no convention” and subsequent election of delegates if a convention was approved, violated? 5. Does the broad prosecutorial discretion granted to the Attorney General, an Officer sworn to uphold the Constitution, include threatening people that pose such questions with incarceration and fines29? 28 See 03CV201400043000-ROA-V1-B.pdf see page 200 “ORDER” 29 IBID page 81 12 Of 26 STATEMENT OF FACTS 1. Senator Del Marsh created and was the sole sponsor of resolution SJR82 “ESTABLISHING A CONSTITUTIONAL REVISION COMMISSION”. Said resolution negates the requirements set out in Article XVIII § 286. emphasis added 2. Failing to ascertain the authority authorizing Senator Marsh's action; a query posed (private Quo Warranto) on February 4th, 2014 the Relators submitted on July 2nd, 2014 “INFORMATION FROM THE RELATORS ON BEHALF OF THE PEOPLE OF ALABAMA SEEKING A WRIT OF QUO WARRANTO.30 3. Two proceedings were held, August 14th, 2014 and October 15th, 2014 before the Honorable William Shashy. Senator Marsh was not present. 4. A claim of legislative immunity was asserted by Senator Del Marsh through Jeffery Long, Assistant Attorney General. 5. Judge Shashy Ordered, on March 6th, 2015 that the “matter is dismissed with prejudice inasmuch as Senator Del Marsh has absolute legislative immunity. This Court finds that the Plaintiffs are contesting actions taken by Del Marsh in his legislative capacity”.31 6. The Relators, all people of Alabama, acting in their sovereign capacity are not “Plaintiffs” having repeatedly and consistently objected32 to all efforts wherein, by conversion, if not rebutted would change the nature of the query (Quo Warranto) “by what authority” does Senator Del Marsh act in order to revise the Alabama Constitution without first placing before the people of Alabama the question of convention or no convention? - to that of a justiciable controversy. 30 See 03CV201400043000-ROA-V1-B.pdf page 6 31 See 03CV201400043000-ROA-V1-B.pdf page 199 32 See 03CV201400043000-ROA-V1-B.pdf page 51 through 52 IBID with particular attention to page 116 of the MEMORANDUM IN SUPPORT OF MOTION TO STRIKE 03CV201400043000-ROA-V2-B.pdf hearing transcript page 1 through 6 13 Of 26 7. Said Order states that legislative immunity can only be asserted wherein “the basis of the prosecution is a legislative act or the motivation for a legislative act”. 8. When queried via a Quo Warranto said requirement of response falls upon the Respondent to answer “by what authority”. 9. Senator Marsh, a four term Senator, who is required to know the law, did not respond. 14 Of 26 STATEMENT OF THE STANDARD OF REVIEW 1. The standard of review, de novo is herein applicable for the Relators, (people) having granted to the State through the Alabama Constitution Article VI § 140 the authority to demand and know from an Officer the Constitutional and concurring statutory source authorizing their action. BIRMINGHAM BAR ASS'N v. PHILLIPS & MARSH et al. 6 Div. 604. SUPREME COURT OF ALABAMA 239 Ala. 650; 196 So. 725; 1940 Ala. LEXIS 414 2. Said Officer's, requirement to know the law can be no less than that of the people. SUPREME COURT OF ALABAMA Ex parte Sarah Janie Hicks;(In re: Sarah Janie Hicks v. State of Alabama) 1110620 2014.AL.0000105 April 18, 2014; SUPREME COURT OF ALABAMA SPECIAL TERM, 2007 No. 1050299 2007.AL.0000545 September 21, 2007 EX PARTE STATE OF ALABAMA (In re: James Craig Boutwell v. State of Alabama) (Covington Circuit Court, CV-04-48; Court of Civil Appeals, 2040477); Moore v. Brown, 52 U.S. (11 How.) 414, 428 (1850); ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2010-2011 2100048 2011.AL.0000060 February 11, 2011 TOWN OF WESTOVER v. JAMES BYNUM AND J&F ENTERPRISES, LLC, D/B/A; SUPREME COURT OF ALABAMA OCTOBER TERM, 2008-2009 No. 1061727, 2009.AL.0000057 January 30, 2009 MOBILE GAS SERVICE CORPORATION v. ROSA ROBINSON, INDIVIDUALLY AND AS ADMINISTRATRIX AND PERSONAL REPRESENTATIVE OF THE ESTATE OF HARRIETT ROBINSON, DECEASED, AND AS MOTHER AND NEXT FRIEND OF DAVID MCMEANS, KELVIN MCMEANS, AND HARRIETT JOHNSON Appeal from Mobile Circuit Court, (CV-053587). 3. In an action (Quo Warranto) brought by the State the requirement to respond is not optional. State, ex rel. Knox v. Dillard, et al. SUPREME COURT OF ALABAMA 196 Ala. 539; 72 So. 56; 1916 Ala. LEXIS 457; STATE ex rel. CHAMBERS v. BATES. 1 Div. 942. SUPREME COURT OF 15 Of 26 ALABAMA 233 Ala. 251; 171 So. 370; 1936 Ala. LEXIS 436; P. C. WHITE v. STATE ex rel. Conrad M. FOWLER, Solicitor No. 7 Div. 243 Supreme Court of Alabama 262 Ala. 694; 81 So. 2d 267; 1955 Ala. LEXIS 524. 4. It being only reasonable, therefore, that the people, the Relators as a matter of law do have and hold all applicable attributes to said Quo Warranto. See Article I § 2 of the Alabama Constitution wherein the people are the source of power. 16 Of 26 SUMMARY OF THE ARGUMENT 1. Senator Del Marsh, Respondent, a four term Senatorial Office holder failed to respond to the query (Quo Warranto) to bring forth the authority to revise the Alabama Constitution without first placing before “all the qualified electors of the state”, the “question of convention or no convention”. 2. A cloak of immunity is claimed by and through Jeffery Long, Assistant Attorney General wherein Senator Marsh is immune from producing authorization for his action. 3. Said claims fail in that it is relevant wherein motivation is the basis for suit. Action brought by the Relators is not a suit, it is an Information in the Nature of a Quo Warranto. 17 Of 26 ARGUMENT 1. All efforts at converting the status of the Relators, people of Alabama that would assign their position to that of Plaintiffs wherein a justiciable controversy exists has been consistently objected to and rebutted33. 2. Immunity from suit wherein the basis for suit is motivation as asserted by Jeffery Long, Assistant Attorney General and accepted as valid as so Ordered34 by the trial court is moot. For the action brought by the Relators is an Information in the Nature of a Quo Warranto. 3. Immunity is valid when an Officer of the State observes, adheres to and follows the duties, obligations and restrictions specified in the Constitution and concurring statute. Here the obligation laid out in Article XVIII § 286 of the Alabama Constitution is clear. The question of “convention or no convention” is not optional – it must be placed before the voters of this State. 4. Said mandated requirement has been adjudicated. To wit: State v. Manley 441 So.2d 864 (1983) "The constitution can be amended in but two ways, either by the people, who originally framed it, or in the mode prescribed by the instrument itself.... We entertain no doubt, that, to change the constitution in any other mode than by a convention, every requisition which is demanded by the instrument itself, must be observed, and the omission of any one is fatal to the amendment." “The constitution is the supreme and paramount law. The mode by which amendments are to be made under it is clearly defined. It has been said 33 See 03CV201400043000-ROA-V2-B.pdf proceeding August 14th, 2014 page 1 through 6 and 03CV201400043000ROA-V1-B.pdf written objection page 51 and 52 34 03CV201400043000-ROA-V1-B.pdf page 199 and 200 18 Of 26 that certain acts are to be done certain requisitions are to be observed, before a change can be effected. But to what purpose are these acts required, or these requisitions enjoined, if the Legislature or any other department of the government, can dispense with them. To do so, would be to violate the instrument which they are sworn to support....” emphasis added 5. A breached duty, voluntarily sworn to is, as noted in Article IV, § 56 of the Alabama Constitution a violation of Senator Marsh's Oath of Office and therefore the cloak of governmental immunity cannot exist. 6. As such the Respondent, Senator Del Marsh, not the Assistant Attorney General, is to respond. To wit: STATE ex rel. CHAMBERS v. BATES. 1 Div. 942. SUPREME COURT OF ALABAMA 233 Ala. 251; 171 So. 370; 1936 Ala. LEXIS 436; Roberts v. Bailey, 228 Ala. 222, 153 So. 432; Baker v. State ex rel. Green, 222 Ala. 467, 133 So. 291; Sharp v. State, 217 Ala. 265, 115 So. 392.”; Frost v. Clements, 153 Ala. 654, 45 So. 20335 “When defendant admits that he was holding an office and exercising its powers and functions, in a proceeding to remove him from office, he has the burden to allege and prove that he was in the rightful exercise of them. Further pleading is not necessary by plaintiff unless he seeks to show some disqualification for the office or a forfeiture of it.” emphasis added P. C. WHITE v. STATE ex rel. Conrad M. FOWLER, Solicitor No. 7 Div. 243 Supreme Court of Alabama 262 Ala. 694; 81 So. 2d 267; 1955 Ala. LEXIS 524 "When the party holding the burden of proof wholly fails to adduce evidence to support the cause of action or defense, or 35 IBID page 151 19 Of 26 where the testimony of one's own witnesses, without conflict, makes out the case of the opposing side, the [***11] court may direct the verdict by affirmative instruction without hypothesis on request in writing. In such case there is nothing to argue. The party may not assail the credibility of his own witnesses in argument.” 7. The Relators, all people of Alabama, acting in their sovereign capacity (U.S. Supreme Court Stone v. Mississippi, 101 U.S. 814 (1879)) as affirmed in the Constitutions of the United States and the republic Alabama with concurring Alabama Code 6-6-591 as stated are not “Plaintiffs” and did so as stated in the transcript of proceeding of October 15th, 2014 bring Information in the Nature of a Quo Warranto. To wit: “THE COURT: Hold on a second. This is brought as a quo warranto --” “MR. CASEY: Yes.” “THE COURT: -- to remove him from office?” “MR. CASEY: The quo warranto is the question. Should he not respond, the proper order from the Court is to oust. We don't necessarily want Del Marsh out of office; but if he won't come forward with the authority to act, which he's required to do, then there is nothing to do but oust him.”36 8. Said question spoken of by Mr. Casey during the proceedings of October 15th, 201437: “...Del Marsh could resolve this issue. All he has to do is give us the chapter and verse of the Constitution that allows the revision of the Constitution without placing the vote – question of convention or no convention before the people.” 36 See 03CV201400043000-ROA-V2-B.pdf proceeding page 15 through 16 37 IBID page 16 20 Of 26 9. The same question (Quo Warranto) was posed in the following written format- Senator Del Marsh is to bring forth “his authority wherein his effort to revise the Alabama Constitution through an amendment process without placing “the question of convention or no convention” before all of “the qualified electors of the state.”38 10. The lack of authority to revise the Alabama Constitution through an amendment process without placing “the question of convention or no convention” before all of “the qualified electors of the state.” was cited39: a) State v. Manley, 441 So.2d 864, 867 (Ala. 1983) b) GUY HUNT, ETC., ET AL. v. DECATUR CITY BOARD OF EDUCATION, ET AL. AL.2270 628 So. 2D 393 August 27, 1993 c) Water Works and Sewer Board of the City of Prichard v. The Board of Water and Sewer Commissioners of the City of Mobile d/b/a Mobile Area Water and Sewer Service System No. 1120630 Supreme Court of Alabama September 13, 2013, 11. The purpose for which the Relators brought the action in ascertaining Senator Marsh's authority to act is a valid action via a Quo Warranto. To wit: Alabama Supreme Court in State, ex rel. Weatherly, et al. v. Birmingham Water Works Co. 185 Ala. 388; 64 So. 23; 1913 Ala. LEXIS 66740 “Looking alone to the language of section 5450, we might reasonably give to it the construction contended for by respondent, viz., that "unlawfully exercising" a franchise means exercising it without authority of law. This would be its strict, and perhaps its more natural, meaning. But we cannot so view it. Of the scope of our statutory remedy this court long ago declared that the "system was manifestly intended to be, and is, a complete one, covering the 38 03CV201400043000-ROA-V1-B.pdf page 149 39 IBID page 159 through 160 40 IBID page 149 through 150 21 Of 26 whole subject, taking the place of the common-law remedy. * * * Indeed, the statutory system preserves, substantially, the principles of the common-law remedy, only regulating, as within perfect legislative competency, by whom, in whose names and behalf, and by what procedure, public and private rights, which the common-law information was adequate to redress, should be set on foot and adjudicated." State v. Elliott, 117 Ala. 172, 23 So. 43.” emphasis added BIRMINGHAM BAR ASS'N v. PHILLIPS & MARSH et al. 6 Div. 604. SUPREME COURT OF ALABAMA 239 Ala. 650; 196 So. 725; 1940 Ala. LEXIS 414 41 “The remedy in nature of quo warranto given to state looks to sovereign power of state with respect to use or abuse of "franchises," which are special privileges, created by its authority, and which must, as a principle of fundamental public policy, remain subject to its sovereign action in so far as interest of public or any part thereof are affected by their usurpation or abuse. Code 1923, § 9932.” emphasis added “Where there is breach of duty to public, remedy of quo warranto is available in name of state, by any member of public upon a compliance with the statute. Code 1923, § 9929 et seq.” emphasis added “[HN3] Quo warranto was a very ancient prerogative writ directed against him who usurped an office or franchise to inquire [**732] by what authority he exercised such franchise, etc. 51 C. J. 309, § 2.” 12. Jeffery Long, Assistant Attorney General affirms that a Quo Warranto is the proper writ to seek in determining if an action by a governmental official is unlawfully exercised. To wit: MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 41 IBID page 150 through 151 22 Of 26 “[A writ of quo warranto] inquires by what right the person proceeded against exercises official authority...”42 Leigh v. State, 69 Ala. 261,266 (1881). “A writ of quo warranto serves to answer whether Senator Marsh lawfully holds the office of Senator and whether he rightfully exercises his duties and powers.”43 “A writ of quo warranto may either inquire by what authority a person holds a public office or by what authority a person exercises official powers.”44 “The Alabama Supreme Court held that a writ of quo warranto "inquires by what right the person proceeded against exercises official authority...”45 13. Jeffery Long, Assistant Attorney General asserts that Senator Del Marsh is immune from query (Quo Warranto) wherein the question posed seeks the Constitutional and concurring Statutory authority authorizing Senator Marsh's action. Cited for such immunity is the “speech and debate clause” of Article IV § 56.46 Converting a Quo Warranto into suit where litigants contest a matter “for the purpose of enforcing a right or seeking a remedy”47, negates the process which merely seeks that which the Respondent is required to know48. 14. The general comment of the annotation for Alabama Code 6-6-591 “State, ex rel. Weatherly, et al. v. Birmingham Water Works Co. SUPREME COURT OF ALABAMA 185 Ala. 388; 64 So. 23; 1913 Ala. LEXIS 667” is instructive as to the purpose of a Quo Warranto. To wit: "When the remedy by information in the nature of quo warranto has been 42 43 44 45 46 47 48 IBID page 82 IBID IBID page 84 IBID IBID page 77 Black's Law Dictionary Fifth edition 03CV201400043000-ROA-V1-B.pdf page 125 paragraph 15 23 Of 26 regulated by legislative enactments, these enactments are regarded by the courts as in the nature of remedial statutes, to which a strict construction is not to be applied. In such cases the usual rules of construction of remedial statutes are held applicable, and the courts will so construe them as to promote and render effective the remedy sought”. emphasis added “The language here in question is: "When any person usurps, intrudes into, or unlawfully holds or exercises * * * any franchise within this state." In view of the manifest [***27] purpose of the Legislature in the enactment of our several statutes on this subject, it is not a strained interpretation of the phrase "unlawfully exercises" to give to it a broader meaning than its prior alternative "usurps," and to hold that it comprehends the unlawful use or abuse of an actually existing franchise, and not merely the unauthorized assumption of one.”--High on Ex. Leg. Rem. § 622. emphasis added (James L.) High 1896 A Treatise On Extraordinary Legal Remedies, Embracing Mandamus, Quo Warranto, and Prohibition “While, under section 5453, you require the defendant, [***53] individual or corporation, to come in and show by what right or authority he or it holds such office or exercises such franchise right; and, if he or it cannot show such right or authority, a judgment of ouster as to such office or franchise is entered”. emphasis added 24 Of 26 CONCLUSION Common sense dictates that Officials must know the law and the duties thereof for - without such knowledge government established to protect “the citizen in the enjoyment of life, liberty and property”49 cannot exist. Therefore, when a query is made from the beneficiary50 (Relators/people) regarding the knowledge of the law that obligates and restricts said office holder, his fiduciary51 responsibility, acquired by voluntary oath52 dictates that his response be with all honesty and candor. Thus, immunity cannot be asserted where the requirement to respond is violated. 49 50 51 52 Alabama Constitution Article I § 35 IBID Article I § 2 03CV201400043000-ROA-V1-B.pdf page 116 IBID page 152 25 Of 26 I, Donald Curtis Casey certify that I have communicated via electronic means this document to all Relators applicable hereto and they have informed me of their concurrence. If a signed notarized copy of the aforementioned is required from each Relator an additional amount of time for submission is requested. CERTIFICATE OF SERVICE I hereby certify that on this, the 1st day of June 2015, I submitted the foregoing instrument to the Clerk of the Court for the Alabama Supreme Court and a copy of the same to: Jeffery H. Long, Assistant Attorney General 501 Washington Av. Montgomery, Alabama 36130-0152 _____________________________________ Donald Curtis Casey THE STATE OF ALABAMA ______________________COUNTY I, ________________________________________ a Notary Public, in and for the State of Alabama hereby certify that the individual who signed this instrument is known to me, acknowledge before me on this day, that being informed of the contents of the instrument, have voluntarily executed said instrument on the day so designated below. Given under my hand this _____________ day of _____________, A. D. 2015. Notary Public Print Name ____________________________Notary Signature________________________ My commission expires:__________________ 26 Of 26