The United States Court of Appeals for the Eleventh Circuit has certified two questions to this Court pursuant to Rule 18, Ala. R.App. P.
I. Facts and Procedural History
In Davis v. Alabama Education Ass'n, 92 So.3d 737 (Ala.2012), this Court summarized the facts underlying this litigation:
On February 25, 2011, the Alabama Education Association ("the AEA"), Alabama Voice of Teachers for Education ("A-VOTE"), and six members of the AEA, namely, Pam Hill, Cathey McNeal, Jeff Breece, Chassity Smith, Dorothy Strickland, and Ronald Slaughter (the AEA, A-VOTE, and the individual members of the AEA are hereinafter referred to collectively as "the AEA plaintiffs"), filed a complaint in the United States District Court for the Northern District of Alabama ("the district court"), naming as defendants Governor Robert Bentley; then State Superintendent of Education Joseph Morton;
On March 18, 2011, two days before the effective date of the Act, the district court issued a preliminary injunction enjoining the Newton defendants from "implementing or enforcing" the Act. The Newton defendants appealed the district court's issuance of the preliminary injunction to the United States Court of Appeals for the Eleventh Circuit.
On March 23, 2011, the International Association of Fire Fighters ("the IAFF"); FIREPAC, a political-action committee affiliated with the IAFF; IAFF Local 1349; Paul Cumbaa, a member of both the IAFF and IAFF Local 1349; IAFF Local 3948; Wilburn Cain, a member of both the IAFF and IAFF Local 3948; American Federation of Teachers ("AFT") Local 2115; AFT Local 2143; AFT Local 4866; AFT Local 6248; Thomas D. Johnson, a member of
On May 20, 2011, the district court in the second action issued a preliminary injunction enjoining the Strange defendants, with the exception of Governor Bentley,
On December 23, 2011, the Eleventh Circuit Court of Appeals narrowed the scope of the preliminary injunctions entered by the district court, stating, in relevant part:
Alabama Educ. Ass'n v. State Superintendent of Educ., 665 F.3d 1234, 1239 (11th Cir.2011).
In the same opinion, the Eleventh Circuit Court of Appeals stated:
Alabama Educ. Ass'n, 665 F.3d at 1238 (footnote omitted).
The Eleventh Circuit Court of Appeals certified to this Court the following questions regarding the scope of the Act:
Alabama Educ. Ass'n, 665 F.3d at 1238.
The parties have filed thorough, well written briefs on the certified questions, see Rule 18(g), Ala. R.App. P., and this Court heard oral argument on October 1, 2012, see Rule 18(h), Ala. R.App. P.
II. Rules of Statutory Construction
The certified questions in this matter require us to determine the scope of certain provisions of the Act; thus, we are mindful of the well settled rules of statutory construction.
AltaPointe Health Sys., Inc. v. Davis, 90 So.3d 139, 157 (Ala.2012).
A. Certified Question #1
The portion of the Act relevant to this question provides:
§ 17-17-5(b)(1), Ala.Code 1975 (emphasis added).
The AEA plaintiffs, the IAFF plaintiffs, and amici curiae Alabama State Employees Association ("the ASEA") and its political-action committee ("SEA-PAC") (hereinafter referred to collectively as "the plaintiff groups") argue, in sum, that the "or otherwise" language in the Act is overbroad and that it can be read to prohibit a State employee from paying dues to organizations such as the AEA or from making donations to a political-action committee, even if the State is not involved in facilitating those payments in any manner. Conversely, the Newton defendants and the Strange defendants (hereinafter referred to collectively as "the defendant groups") argue that the Act may be read to prohibit only State facilitation of payments to organizations such as the AEA and State facilitation of donations to a political-action committee, and, thus, they say, the members of such organizations are free to make payments or donations by private means.
Viewing the language in question in the context of the entire Act leads us to conclude that the Act is meant to prohibit only the use of State mechanisms to support political organizations. We reach this conclusion for the following reasons.
First, we note that in subsection (b) the Act states that groups wishing to utilize payroll deductions must certify that they are not engaging in "political activities." Specifically, the Act states:
§ 17-17-5(b)(2), Ala.Code 1975. The above-quoted language is clear in showing that the government, i.e., "the State of Alabama, a county, a city, a local school board, or any other governmental agency," must be involved in arranging for the payment of the State employee's membership dues for the Act to apply; therefore, private forms of payment, i.e., forms of payment not facilitated by the government, are not prohibited.
Also, it is noteworthy that the penalties for violating the Act apply only to the organization to which the dues or payments are made and only when the dues or payments are facilitated by the State. Specifically, the Act states:
§ 17-17-5(b)(2), Ala.Code 1975 (emphasis added).
Furthermore, prior decisions of this Court show that the phrase "or otherwise" should not to be interpreted as creating an essentially unlimited prohibition against State employees' arranging for payments to organizations engaged in political activity. Instead, our prior decisions show that the general phrase "or otherwise" should be interpreted as referring only to other matters similar to those specifically stated in the statute being construed, which, in this case, is a "salary deduction." Put differently, we are required to find that the term "or other-wise" refers, not to any manner of payment to organizations engaged in political activity but, instead, refers to any manner of payment to such organizations that is in the nature of a salary deduction. See, e.g., Snider v. Wood, 531 So.2d 864, 866-67 (Ala. 1988) (concluding that the phrase "needed to pay taxes or otherwise" meant "to pay taxes or other similar expenses" and noting that, under the rule of ejusdem generis, "general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned"); Foster v. Dickinson, 293 Ala. 298, 300, 302 So.2d 111, 113 (1974) ("The words, `or otherwise' in law when used as a general phrase following an enumeration of particulars are commonly interpreted in a restricted sense as referring to such other matters as are kindred to the classes before mentioned, receiving ejusdem generis interpretation." (citing Goode v. Tyler, 237 Ala. 106, 186 So. 129 (1939), and State v. Tyler, 100 Fla. 1112, 130 So. 721 (1930))); and Amos v. State, 73 Ala. 498 (1883) ("The more general words, or otherwise dispose of, following the more specific or particular words, sell, or give away, upon a settled rule of statutory construction, a larger legislative intention not being clearly expressed, must be construed as extending only to a disposition ejusdem generis with a sale or a gift; they are not to be extended to any and every act which may be said to be a disposition.").
As stated above, "[w]hen interpreting a statute, this Court must read the statute as a whole because statutory language depends on context." Davis, 90 So.3d at 157. Having considered the Act as a whole, we conclude that the Act is meant to prohibit
B. Certified Question #2
As an initial matter, we note that we cannot determine whether the term "political activity" — which we define herein "[f]or purposes of this subsection only," see § 17-17-5(b)(1) — refers to only "electioneering activities" without first understanding the meaning of the term "electioneering," which has not been defined by our legislature. The Oxford English Dictionary defines "electioneering" as follows: "The art or practice of managing elections; canvassing on behalf of candidates for membership in representative assemblies." V The Oxford English Dictionary 117 (2d ed. 1989). From the foregoing we may understand electioneering activities to include only those activities that involve working on behalf of or in opposition to candidates for elected offices.
On this issue, the plaintiff groups argue, in sum, that the term "political activity" is unconstitutionally vague and thus establishes an impermissibly expansive reach of the Act. More specifically, the plaintiffs' groups argue, among other things, that
AEA plaintiffs' brief, at 29; see also IAFF plaintiffs' brief, at 25, and brief of amici curiae, at 24-25. The plaintiff groups further argue that six of the seven categories to which "political activity" is limited as set forth in subsection (b)(1)a.-g. are vague because, they say, those six categories "depend, in a circular fashion, on the undefined adjective `political.'" AEA plaintiffs' brief, at 30; see also IAFF plaintiffs' brief, at 23-24.
As noted, the plaintiff groups contend that the language of the Act is overly broad because, they say, six of the seven categories of political activity set forth in subsection (b)(1)a.-g. are, in part, defined by the word "political," which itself is not defined by the Act. The IAFF plaintiffs contend:
IAFF plaintiffs' brief, at 24 (footnote omitted). The AEA plaintiffs' present a very similar argument, contending:
AEA plaintiffs' brief, at 30.
Before examining the seven specific forms of expression or activity listed in paragraphs a. though g. of subsection (b)(1), we note that they are preceded by this statement of the general rule:
(Emphasis added.) It is this "lead-in" language that describes the substantive field — the field of "political" activity — within which the subsequently listed forms of expression are pertinent.
The ASEA and SEA-PAC correctly note that the word "political" has a rather expansive definition in its legal usage. See brief of amici curiae, at 23-24. The word "political" has been defined as follows:
Black's Law Dictionary 1158-59 (6th ed. 1990).
Thus, the term "political activity," which precedes the list of seven categories, embraces more than electioneering.
By their plain language, subparagraphs a. and c. define political activity, within the context of "political communication," as "including," but not limited to, "communications which mention the name of a political candidate." Stated differently, subparagraphs a. and c. may be read as defining political activity to include "[m]aking contributions to or contracting with any entity which engages in any form of political communication," including political communication that is not in the form of candidate-based advocacy, and "[e]ngaging in or paying for any form of political communication," again including political communication that is not in the form of candidate-based advocacy. These two subparagraphs cannot be read as limiting political activity to only electioneering activities.
Furthermore, subparagraph b., which defines political activity as "[e]ngaging in or paying for public opinion polling," cannot be read as encompassing only electioneering activities. Suffice it to say, without any qualifying language, "public opinion polling" could be understood to include polling on issues other than candidate-based advocacy. Subparagraph d., which defines political activity as "[e]ngaging in or paying for any type of political advertising in any medium," also cannot be read as encompassing only electioneering activities. "Political advertising" may take many forms beyond candidate-based advocacy, including, for example, advertising that encourages people to vote for or against a proposed constitutional amendment. Similarly, subparagraph e., which defines political activity as "[p]hone calling for any political purpose," goes beyond electioneering activities in that "any political purpose" could include the example
Based on the foregoing, we conclude that the term "political activity," as used in the Act, is not limited to activity on behalf of or in opposition to candidates for elected offices, i.e., electioneering activities. Put simply, the plain language of subsection (b)(1)a.-f. describes political activity in terms that cannot be understood to limit that activity to electioneering activity.
We answer the first certified question in the affirmative and the second in the negative. Our answers to the questions certified to this Court may be summarized as follows:
1. The "or otherwise" language in the Act is limited to the use of State mechanisms to make payments to organizations that use at least some portion of those payments for political activity.
2. The term "political activity" is not limited to electioneering activities, i.e., activities undertaken in support of candidates for elected offices.
We reiterate that our construction of the term "political activity" applies only as that term is used and expressly "limited" in subsection (b)(1) of the Act, and this construction of the term "political activity" is not intended to be applied beyond the narrow "limited" parameters of subsection (b)(1).
STUART, WISE, and BRYAN, JJ., concur.
MURDOCK, J., concurs specially.
SHAW, J., concurs in the result.
MOORE, C.J., and BOLIN, J., concur in part and dissent in part.
MAIN, J., recuses himself.
MURDOCK, Justice (concurring specially).
I concur in the main opinion. In his special writing dissenting from our answer to the second certified question before us, the Chief Justice argues that our construction of § 17-17-5, Ala.Code 1975, should be altered based on the rule of statutory construction that, under certain circumstances, disfavors interpretations of statutes that will make them unconstitutional. 144 So.3d at 268. I cannot agree that we should alter our construction of § 17-17-5 on this ground.
The statute at issue in Ysursa v. Pocatello Education Ass'n, 555 U.S. 353, 129 S.Ct. 1093, 172 L.Ed.2d 770 (2009), cited by the Chief Justice in note 16, prohibited payroll deductions for "political activities," which it defined as "`electoral activities, independent expenditures, or expenditures made to any candidate, political party, political action committee or political issues committee or in support of or against any ballot measure.'" 555 U.S. at 356,
555 U.S. at 358, 129 S.Ct. 1093 (citation omitted).
Even if the other circumstances for the application of the rule of construction advanced by the Chief Justice were present here, I see no basis for applying that rule in this case.
SHAW, Justice (concurring in the result).
I concur only with the main opinion's summation of the answers to the certified questions regarding Ala.Code 1975, § 17-17-5:
144 So.3d at 278. I write specially to note the following regarding the second question and the State's argument regarding that question.
The definition of "political activity" in Ala.Code 1975, § 17-17-5, is much broader than simple electioneering. For example, it is defined generally as "[e]ngaging in... any form of political communication." § 17-17-5(b)(1)c. This language on its face is broad and is not limited to electioneering. The definition then notes that this general definition includes the specific example of electioneering-type communications: "including communications which mention the name of a political candidate."
If "political activity" encompassed only electioneering, then the general definition — "any form of political communication" — is superfluous, because the subsequent specific example would be the only form of communication forbidden. In other words, why would § 17-17-5(b)(1)c, state that "any form of political communication" is political activity if its true scope was more limited, and it forbade only the electioneering activity given in the example of what is "included," i.e., "communications which mention the name of a political candidate [electioneering communications]." The general definition of "political activity" is no definition at all if it is limited to only what it stated was "included" as part of the definition.
The State cites an attorney general opinion, Op. Att'y Gen. No. 2003-232 (August 28, 2003), that purportedly defines "political activity" or at least allegedly assists in determining the proper definition. That opinion relied on this Court's decision in Hudson v. Gray, 285 Ala. 546, 234 So.2d 564 (1970). However, I believe that such reliance was misplaced. Specifically, Hudson involved a declaratory-judgment action seeking the determination whether an uncodified local act prohibited certain Birmingham city employees from taking part in "any Political campaign." The applicable portion of the law being construed, Act No. 248, Ala. Acts 1945, § 25 at p. 399, found in Vol. 14, Appx., § 669, Ala.Code 1940 (Recomp. 1958), provided that "[n]o employee shall be a member of any national, state, or local committee of a political party, or an officer of a partisan political club, or a candidate for nomination or election to any public office, or shall take any part in the management or affairs of any political party or in any political campaign." It does not use the phrase "political activity," which phrase appears only in the title of the Code section. The employees wished to petition the city by an initiative under Title 62, § 636, Ala.Code 1940 (Recomp. 1958), but were advised that such activity would violate § 669. This Court attempted to harmonize § 636 and § 669 as follows: "[W]e think it compatible with the operation of both statutes to conclude that circulating and filing the petition as a condition precedent to engaging the power of initiative action is not to be construed as political activity or taking part in a political campaign under the civil service law, § 669...." 285 Ala. at 549, 234 So.2d at 566-67 (citations omitted).
Hudson's extrapolation of the phrase "political activity" is defined in the context of "the civil service law, § 669." Essentially, the Court was using the term "political activity" as a synonym for "political campaign," the term actually used in § 669. Hudson was not providing a general definition of the term "political activity." Thus, I see little support in Hudson for the State's suggested definition of "political activity" found in § 17-17-5.
MOORE, Chief Justice (concurring in part and dissenting in part).
We have a duty to give a statute a construction "that will sustain its validity if reasonably possible." Pruett v. Patton, 288 Ala. 710, 714, 265 So.2d 130, 133 (1972). In answering the second certified question from the United States Court of Appeals for the Eleventh Circuit, the majority interprets "political activity" as that term is used in § 17-17-5, Ala.Code 1975, as not being limited to electioneering activity. However, I believe that the only reasonable interpretation, as set out below, is that the term "political activity" as used in § 17-17-5, in keeping with its usage in the rest of the Code, refers only to electioneering activity. If a statute is reasonably subject to two different constructions
Because the majority does not conduct its analysis against the background of this governing principle, it provides an answer to the second certified question that we ourselves would likely not provide were the question of the constitutionality of the statute before us on appeal. I believe, therefore, that by failing to apply the rule of construction we ourselves would employ were the constitutional challenge before us, we have provided the Eleventh Circuit Court of Appeals an incomplete and misleading answer.
If the majority feels that it is bound to answer the second certified question without considering the principle that a statute is to be construed in favor of constitutionality where possible, I believe it would more adequately assist the Eleventh Circuit by declining to answer the certified questions.
I agree with the main opinion that the "or otherwise" phrase in § 17-17-5(b)(1), Ala.Code 1975, is limited to the use of mechanisms of the State to support political organizations. It herefore concur in the affirmative answer to the first certified question. However, I believe that "political activity" in the Election Code means "electioneering." I would hold that words used in the Election Code refer to elections, whether for candidates, ballot measures, or political parties. I also believe that this reasonable interpretation of the term "political activity" should govern the answer we provide the Eleventh Circuit under our duty to construe a statute in favor of constitutionality where possible. Therefore, I dissent as to the negative answer to the second certified question.
I. Defining "Political Activity"
Section 17-17-5(b)(1), Ala.Code 1975, prohibits government-employee salary deductions for any payment of dues to "a membership organization which uses any portion of the dues for political activity." The statute further provides:
The plaintiff groups argue that the statute defines "political activity" in seven subparagraphs and that those definitions are much broader than mere electioneering activity. For instance, they argue that "public opinion polling" in subparagraph b. has a much broader scope than polling that is only election-related and that "political communications" in subparagraph c. encompass more than candidate advocacy. Further, they argue that the failure of the statute to define the term "political" creates a fatal vagueness.
The statute, however, does not say that political activity is "defined as all of the following." Instead, it says that political activity "shall be limited to all of the following." Because subsection (b)(1) does not define the scope of the term "political activity," but instead limits it, the actual meaning of "political activity" (before being so limited) must be found elsewhere.
A. The Election Code Context
Although the word "political," standing alone, refers to government in general,
Section 17-1-4 of the Election Code states that "political activities" include "endorsing candidates and contributing to campaigns." "[W]hen specific words follow general words" in a statute, "the general words are construed to embrace only objects similar to those objects enumerated by the specific words." Ex parte Cobb, 703 So.2d 871, 875 (Ala.1996). This application mirrors the ejusdem generis principle, employed by the majority in analyzing the first certified question — that specific words limit the general terms that follow them. See id. ("This rule is equally applicable when specific words follow general words ...."). Because the explanatory phrase "endorsing candidates and contributing to campaigns" restricts the class of objects that constitutes "political activities" in § 17-1-4, the same definition should carry over to § 17-17-5(b)(1). Thus, the seven descriptive subcategories of "political activity" in § 17-17-5(b)(1) would ordinarily be reasonably construed to refer only to election-related activities: "public opinion polling" in § 17-17-5(b)(1)b. would refer to election-related polling; "political communications" in § 17-17-5(b)(1)c. would refer to communications related to elections, whether concerning voting on candidates or ballot measures.
Nonetheless, without claiming that the election-related terms that describe "political activities" in § 17-1-4 are exhaustive of the meaning of that term, one must still admit their probative force in explaining that meaning. In Samantar v. Yousuf, 560 U.S. 305, 314, 130 S.Ct. 2278, 2286, 176 L.Ed.2d 1047 (2010), the Supreme Court construed the following definition: "A `foreign state' ... includes a political subdivision of a foreign state or an agency or instrumentality of a foreign state ...." 28 U.S.C. § 1603(a). Responding to the argument that the terms following "including" in the statute were not exhaustive of its meaning and could thus also include individual government officials, the Court agreed that "the use of the word `include' can signal that the list that follows is meant to be illustrative rather than exhaustive." 560 U.S. at 317, 130 S.Ct. at 2287.
560 U.S. at 317, 130 S.Ct. at 2287-88. Similarly, even if the description of the term "political activities" in § 17-1-4 as "endorsing candidates and contributing to campaigns" is merely illustrative, it still suggests that the term "political activities" does not encompass non-electioneering activity. The descriptive phrases following the word "including" in § 17-1-4 refer exclusively to electioneering activities. "`But granting that the word "including" is a term of enlargement, it is clear that it only performs that office by introducing the specific elements constituting the enlargement.'" Application of Central Airlines, 199 Okla. 300, 303, 185 P.2d 919, 923 (1947) (quoting Blanck v. Pioneer Mining Co., 93 Wn. 26, 30, 159 P. 1077, 1079 (1916)).
As a further example, the section of the Election Code immediately preceding § 17-17-5 is entitled "Improper use of official authority or position for political activities." § 17-17-4, Ala.Code 1975 (emphasis added). This section punishes as a felon "[a]ny person who attempts to use
B. Noscitur a Sociis
Sections 17-1-4, 17-17-4, and 17-17-5(b)(1) are all included in Title 17, the Alabama Election Code. Because a word is known by the company it keeps, one would expect "political activity," when included in the Election Code, to refer to elections. "This maxim of statutory construction, noscitur a sociis, has been embraced by this Court as an aid in construing ambiguous statutory language." Ex parte Cobb, 703 So.2d at 876. See also Winner v. Marion Cnty. Comm'n, 415 So.2d 1061 (Ala.1982) (noting that general words are qualified "by associated words"); Nettles v. Lichtman, 228 Ala. 52, 56, 152 So. 450, 454 (1934) (noting that noscitur a sociis is "broader in its scope than the kindred maxim, ejusdem generis").
Section 17-1-4, which supplies a particular definition of "political activity," is in Chapter 1 ("General Provisions") of the Election Code. One would expect that general provisions apply to the Code in general. The opening section of the Election Code, apparently assuming sub silentio that the Code applies to statewide general elections, states that with certain exceptions: "All of the provisions of this title shall apply to all primary elections and all elections by counties or municipalities held in this state ...." § 17-1-1, Ala.Code 1975. This first section makes clear, as one would expect, that the Election Code applies to elections. By the same logic, "political activity" in the Election Code is election-related or "electioneering" activity. The seven categories of "political activity" to which § 17-17-5(b)(1) limits its application are therefore all variants of election-related activity, thus eliminating the asserted vagueness and overbreadth problems. In further support of this interpretation, I note that the 28 definitions provided in § 17-1-2 all relate to elections. The absence of "political activity" from the definitions list in § 17-1-2, therefore, does not create a vagueness problem. "Political activity," like the other definitions in the Code, is understood by the canon of noscitur a sociis as election-related. Further, § 17-17-5 falls within Chapter 17 of Title 17, entitled "Election Offenses." Thus, the offenses and penalties listed therein are all election-related, including those related to government-employee payroll deductions. Where terms are "susceptible of multiple and wide-ranging meanings," "those meanings are narrowed by the commonsense canon of noscitur a sociis." United States v. Williams, 553 U.S. 285, 294, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008).
C. In Pari Materia
Insofar as noscitur a sociis does not extend to a comparison of sections in different chapters of the same title, the principle of in pari materia applies: statutes on the same subject matter should be construed together so as to harmonize them. "Statutes are in pari materia — pertain to the same subject matter — when they ... have the same purpose or object." 2B Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction § 51:3 (7th ed. 2012) ("Statutory Construction"). Sections 17-1-4 and 17-17-5, both residing in the Election Code, have the common purpose of regulating elections and thus should be construed together. "[S]tatutes relating to the same subject matter must be read in pari materia, thus allowing for legal harmony where possible." Ex parte State, 786 So.2d 1134, 1136 (Ala.2000). See also Locke v. Wheat, 350 So.2d 451, 453 (Ala.1977) ("As a general rule, such statutes [in pari materia] should be construed together to ascertain
In particular, "courts construe words or phrases from a prior act on the same subject in the same sense." 2B Statutory Construction § 51:2. Section 17-1-4, which provides a definition of "political activities," was originally enacted in 1978, Kirby v. Mobile Cnty. Comm'n, 564 So.2d 447, 449 (Ala.Civ.App.1990), preceding the enactment in 2006 and the revision in 2010 of § 17-17-5 by approximately 30 years. Subsection 17-17-5(b)(1) should thus be read to provide the same meaning for "political activity" as the legislature has provided in § 17-1-4. "[T]he need for uniformity becomes more imperative where the same word or term is used in different statutory sections that are similar in purpose and content...." Commissioner of Internal Revenue v. Ridgeway's Estate, 291 F.2d 257, 259 (3d Cir.1961). That § 17-17-5 does not specifically refer to § 17-1-4 is of no moment. "Statutes need not have been enacted simultaneously or refer to one another to be in pari materia." 2B Statutory Construction § 51:3.
D. The Larger Context
1. Statutes Outside the Election Code
Uses of the term "political activity" in other sections of the Code also reflects its limitation to electioneering activities. Article 4 in Chapter 12 of Title 36 is entitled "Use of State-Owned Property for Political Purposes." The first section of Article 4 states:
§ 36-12-60, Ala.Code 1975. Thus, "political purposes," potentially an even broader term than "political activity," is described in § 36-12-60 as promoting or advancing a candidacy for elective office. Chapter 26 of Article 36 is entitled "State Personnel Department and Merit System." Section 36-26-38 in this chapter, entitled "Political activities prohibited," states:
This description of prohibited "political activities" includes solely election-related activity. Section 17-1-4 specifically references § 36-26-38, thus incorporating these requirements into a section of the Election Code. After referring to endorsing candidates and contributing to campaigns as permitted "political activities," § 17-1-4(a)(3) states: "Notwithstanding the foregoing, any person within the classified service shall comply with Section 36-26-38."
The local laws in the Code similarly limit "political activity" to electioneering. See, e.g., § 45-11-231.11 ("Political activities"), which prohibits favoring or disfavoring employees of the Chilton County sheriff
In Marshall County Board of Education v. State Tenure Commission, 291 Ala. 281, 280 So.2d 130 (1973), this Court construed a statute that prohibited the transfer or discharge of tenured school teachers for "political or personal reasons." The Court construed "political reasons" to be the equivalent of a transfer or discharge for "political activity" and stated:
291 Ala. at 286, 280 So.2d at 133-34 (emphasis added). The Court's understanding of "political activity" in Marshall County Board of Education parallels its use in the statutes of this State, namely that "political activity" means election-related activity.
II. The Duty to Construe a Statute in Favor of Constitutionality
In its opinion accompanying the certified questions, the Eleventh Circuit Court of Appeals stated: "If [the Act] is meant only to reach payroll deductions for organizations engaged in electioneering activities..., then it presents no constitutional problems. A statute with a broader reach may implicate First Amendment concerns...." Alabama Educ. Ass'n v. State Superintendent of Educ., 665 F.3d 1234, 1238 (11th Cir.2011) (footnote omitted). Although we are answering questions only about the meaning of terms in § 17-17-5 and are not expressing an opinion on the constitutionality of that statute, our answer to the certified questions will undoubtedly affect the Eleventh Circuit's view of the statute's constitutionality. Our construction of the terms at issue, therefore, should be guided by the rule of statutory construction that we interpret a statute to sustain its constitutionality where possible. "Where the validity of a statute is assailed and there are two possible interpretations, by one of which the statute would be unconstitutional and by the other would be valid, the courts should adopt the construction which would uphold it." Alabama State Fed'n of Labor v. McAdory, 246 Ala. 1, 10, 18 So.2d 810, 815 (1944). See also Monroe v. Harco, Inc., 762 So.2d 828, 831 (Ala.2000) ("We must afford the Legislature the highest degree of deference,
Thus, if the language of the statute "so permits," we should interpret the term "political activity" in § 17-17-5 to avoid First Amendment problems. Faced with "two possible interpretations," we should choose the one that is consonant with the constitutionality of the statute, namely that the term "political activity" in § 17-17-5 refers only to electioneering activities. Choosing among two possible interpretations the one that renders the statute constitutional effectuates legislative intent, the goal of statutory construction.
Pruett v. Patton, 288 Ala. 710, 714, 265 So.2d 130, 133 (1972).
Employing standard canons of statutory construction, I conclude that the term "political activity" in § 17-17-5(b)(1) refers to election-related or electioneering activity. Even if the term "political activity" could possibly be construed as overbroad or vague, and thus potentially to infringe protected speech, the presumption of constitutionality attending legislative enactments requires this Court to choose, among two reasonable constructions, the one that would sustain the validity of the enactment. I would therefore answer "yes" to the second certified question: "Does the term `political activity' refer only to electioneering activities?" Although I concur with the affirmative answer to the first certified question, I must, with respect, dissent from the negative answer to the second certified question.
BOLIN, J., concurs.
Alabama Educ. Ass'n v. Bentley, 788 F.Supp.2d 1283, 1287 n. 1 (N.D.Ala.2011).
(Footnotes omitted; emphasis in original.) Therefore, although "endorsing candidates and contributing to campaigns" can fairly be said to fall within the meaning of "political activity," those activities do not define or limit the full reach of "political activity" as it used in the Act.