DOCUMENT 145

ELECTRONICALLY FILED
9/2/2021 9:24 AM
47-CV-2020-901595.00
CIRCUIT COURT OF
MADISON COUNTY, ALABAMA
DEBRA KIZER, CLERK
IN THE CIRCUIT COURT OF THE 23RD JUDICIAL CIRCUIT
MADISON COUNTY, ALABAMA

)
STATE OF ALABAMA EX. REL. )
ATTORNEY GENERAL STEVE )
MARSHALL )
)
Plaintiff, )
) Civil Action No.
) 47-CV-2020-901595
v. )
)
MADISON COUNTY, ALABAMA, AND )
THE MADISON COUNTY )
COMMISSION, )
)
Defendants.
PLAINTIFF’S MOTION TO VACATE JUDGMENT

Plaintiff, the State of Alabama ex rel Attorney General Steve Marshall (“the State”),

pursuant to Ala.R.Civ.P. 59(e), respectfully moves this Court to vacate its judgment entered

September 1, 2021, when the Court granted Defendants’ Motion to Dismiss. As grounds for this

Motion to Vacate, the State states that the Motion to Dismiss, which was filed at close of business

on Friday, August 27, was very much contested, and Plaintiff should have the opportunity to be

heard (the State was preparing to file an opposition when the Court entered its judgment). Madison

County’s Motion to Dismiss was not the product of a settlement agreement, but was unexpected

and was in fact due to be denied. The State has not yet received any payment of a fine from any

party, much less Madison County. While there may be a way to resolve this matter without further

litigation, an anonymous payment to the Clerk of Court, with no evidence of who paid the funds

or why, does not provide a legal means for the State to accept the funds as payment of Madison

County’s fine. Nor does the anonymous payment moot the State’s request for a declaratory

judgment that Madison County violated the law when it relocated the monument at issue in this

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case. The State of Alabama therefore asks that the judgment be vacated and that Defendants’

Motion to Dismiss be denied.

The State brought this action to enforce the Alabama Memorial Preservation Act, which

provides for a twenty-five thousand dollar ($25,000) fine for violations, to be collected by the

Attorney General. Defendants moved to dismiss on grounds of mootness, citing no law supporting

their position. Their motion states, “On August 27, 2021, funds were deposited with the Circuit

Court Clerk on behalf of a third-party not involved in these proceedings, in the amount of

$25,000.00. These funds do not constitute taxpayer funds nor were they paid by Madison County.

However, the deposited funds represent the full amount of any fine sought by the Attorney General

in connection with this lawsuit. These funds were paid unconditionally and with the intention of

resolving this litigation once and for all.” (Doc. 139). On these grounds, Madison County

contended that the case was moot and should be dismissed with prejudice.

Before filing its Motion to Dismiss, Madison County never discussed with the State

whether the State could accept funds anonymously paid into Court, or whether the State would

agree that the case is moot. The State had no knowledge that Madison County was moving to

dismiss. Upon consideration of Madison County’s motion, the State determined that the matter

cannot be resolved through this alleged anonymous payment, and on Monday, August 30, the State

informed Madison County that it could not legally accept funds paid into court by an anonymous

third party, but that it could only accept funds paid by Madison County or someone authorized to

act on Madison County’s behalf. The State further informed Madison County that it would oppose

the Motion to Dismiss.

The State is open to resolving the case without further litigation, but cannot do so simply

because an unknown party paid funds into Court. There is no evidence of who paid the funds or

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why, nothing to indicate that the funds have a connection to this lawsuit, and nothing to indicate

that the State has a legal entitlement to the funds. Defendants do not explain procedurally how the

anonymous third party paid funds into court (they do not allege that these are disputed funds that

would be the proper basis of an interpleader, see Ala. R. Civ. P. 22). There is nothing to show that

no other party claims an interest in the funds. There is nothing but unsubstantiated allegations by

Madison County, which claims no authority to speak for the anonymous party. Thus, the State

cannot legally accept these funds as payment of a fine owed by the Madison County.

This case therefore is not moot. “A case is moot when there is no real controversy and it

seeks to determine an abstract question which does not rest on existing facts or rights.” State ex

rel. Eagerton v. Corwin, 359 So.2d 767, 769 (Ala.1977). “The test for mootness is commonly

stated as whether the court's action on the merits would affect the rights of the parties. A case

becomes moot if at any stage there ceases to be an actual controversy between the parties.”

Chapman v. Gooden, 974 So. 2d 972, 983 (Ala. 2007). Here, the questions in this case are not

abstract, and the questions rest on existing facts or rights: Was a protected monument that had been

in place for more than 40 years eligible for a waiver, when the statute, agency regulations, and

Alabama Supreme Court precedent all say that it is not? Did Defendants move the monument, for

purposes of the Act, by requesting and authorizing the City of Huntsville in writing to move the

monument? And there is an actual controversy between the parties; a judgment declaring whether

Madison County violated the Act, and whether it should be assessed a $25,000 fine, will

undoubtedly affect the rights of the parties.

As Madison County has now twice disclosed in this suit, the State sought to avoid litigation

in this matter by collecting the fine from Madison County before filing its Complaint. (See Doc.

52, Exhibit D; Doc. 87 ¶¶ 7-8, Exhibit C.) Madison County chose to litigate, however, and the

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State still seeks that fine. If Madison County has acquired funding to use so that Madison County

itself will pay the fine as required by law, the State agrees that this matter would be moot. But until

Madison County pays the fine as required by the Act, there remains an active, justiciable

controversy.

For these reasons, the case is not moot, the Motion to Dismiss was due to be denied, and

the Court’s judgment should be vacated. 1

Respectfully submitted,

STEVE MARSHALL (MAR083)

s/ James W. Davis
James W. Davis (DAV103)
A. Reid Harris (HAR389)
Assistant Attorneys General

State of Alabama
Office of the Attorney General
501 Washington Avenue
Montgomery, Alabama 36130
(334) 242-7300
[email protected]
[email protected]

CERTIFICATE OF SERVICE

I hereby certify that on September 2, 2021, I have filed the foregoing with the Clerk of the

Court using the AlaFile/ECF System, which will send notification of such filing to all parties of

record, each of whom are registered for electronic filing.

/s James W. Davis
Counsel for Plaintiff

1
Even if dismissal were proper, the case should not have been dismissed with prejudice. When a
Court dismisses a case because it lacks jurisdiction, dismissal should be without prejudice. See DeArman
v. Liberty Nat. Life Ins. Co., 786 So. 2d 1090, 1092 (Ala. 2000). But again, this action is not moot and the
claims should not have been dismissed on any terms.
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