DUBINA, Circuit Judge:
This appeal came to us following the district court's entry of a preliminary injunction preventing enforcement of Alabama Act No. 2010-761 ("the Act"), codified at Alabama Code § 17-17-5. The Act prohibits public employees from "arrang[ing] by salary deduction or otherwise" for payments to (1) political action committees or (2) organizations that use any portion of the dues for "political activity." Id. § 17-17-5(b) (emphasis added). The Act then goes on to define "political activity" for the purposes of § 17-17-5(b) only, limiting it to:
Id. § 17-17-5(b)(1).
Appellees, the Alabama Education Association, its political action committee A-VOTE,
Appellants, state officials charged with executing the Act, appealed the district court's grant of a preliminary injunction. Though we generally review a grant of a preliminary injunction for an abuse of discretion, we review underlying conclusions of law de novo. N. Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1216 (11th Cir.2008). The district court always lacks the discretion to apply an improper legal standard. Id.
In a facial challenge alleging overbreath and vagueness, "a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct." Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982) (citations omitted). "If it does not, then the overbreadth challenge must fail." Id. As for vagueness, if the enactment implicates no constitutionally protected conduct, the inquiry on a facial challenge is whether "the enactment is impermissibly vague in all of its applications." Id. at 495, 102 S.Ct. at 1191; see also Holder v. Humanitarian Law Project, 561 U.S. 1, 17-18, 130 S.Ct. 2705, 2718, 177 L.Ed.2d 355 (2010) (noting that a criminal statute is unconstitutionally vague if it "fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement" (quotations omitted)). An enactment that is not impermissibly vague in all its applications will survive a vagueness challenge. Village of Hoffman Estates, 455 U.S. at 494-95, 102 S.Ct. at 1191.
A properly conceived ban on salary deductions to organizations engaged in political activity would be constitutional. Ysursa v. Pocatello Educ. Ass'n, 555 U.S. 353, 355, 129 S.Ct. 1093, 1096, 172 L.Ed.2d 770 (2009) ("[N]othing in the First Amendment prevents a State from determining that its political subdivisions may not provide payroll deductions for political activities."). Accordingly, when first confronted with this controversy, this court asked the Alabama Supreme Court to weigh in on the Act's reach and help us assess whether the ban on salary deductions paid to organizations engaged in "political activities" was, in fact, properly conceived. See Ala. Educ. Ass'n v. State Superintendent of Educ., 665 F.3d 1234, 1238 (11th Cir.2011) ("A statute with a broader reach may implicate First Amendment concerns not explored in Ysursa."). We certified two questions:
Id. The Alabama Supreme Court answered our questions in State Superintendent of Education v. Alabama Education Association,
The Alabama Supreme Court's opinion easily resolves any concern that the "or otherwise" language is overbroad. Every member of the Alabama Supreme Court agreed that the language in question, in the context of the entire Act, prohibits only the use of state mechanisms to support politically active organizations. The Act does not prohibit "private forms of payment, i.e., forms of payment not facilitated by the government." Id. at ___, 2013 WL 5763283, at *7. This compels the conclusions that the Act only declines to promote speech, rather than abridging it, and that the Act does not implicate any constitutionally protected conduct, much less a substantial amount. See Ysursa, 555 U.S. at 359, 129 S.Ct. at 1098 (holding that Idaho's limitation on public employee payroll deductions did not implicate the First Amendment, as the prohibition simply prevented organizations from enlisting the state's support of their speech).
Accordingly, we hold that the Appellees cannot demonstrate a substantial likelihood of success on the merits of their overbreadth claim. See Village of Hoffman Estates, 455 U.S. at 494, 102 S.Ct. at 1191 (holding than if an enactment does not reach a substantial amount of constitutionally protected conduct, an overbreadth challenge to it will fail). It is clear to us that the district court applied the wrong legal standard and abused its discretion in granting a preliminary injunction on that basis.
This court geared its second question toward review of the district court's finding that the Act's definition of "political activities" is likely unconstitutionally vague and a violation of due process. See Bentley, 788 F.Supp.2d at 1328 (granting a preliminary injunction after concluding there was a substantial likelihood the Act's challengers would "succeed in demonstrating this part of the statute is void for vagueness"); cf. Village of Hoffman Estates, 455 U.S. at 497, 102 S.Ct. at 1193 ("A law that does not reach constitutionally protected conduct and therefore satisfies the overbreadth test may nevertheless be challenged on its face as unduly vague, in violation of due process."). We asked whether the term "political activities" as used in the Act reaches more than "electioneering activities," and the Alabama Supreme Court indicated that it does. State Superintendent of Educ., ___ So.3d at ___, 2013 WL 5763283, at *7 (holding that "political activity," as used and defined in Ala.Code § 17-17-5(b)(1), "embraces more than electioneering").
To succeed in their void for vagueness challenge, the Act's challenger's "must demonstrate that the law is impermissibly vague in all of its applications." Village of Hoffman Estates, 455 U.S. at 497, 102 S.Ct. at 1193. Where an enactment clearly covers some conduct in which a plaintiff engages, that plaintiff cannot complain of
Likewise, whatever else the Act's definition of political activities may encompass, it includes electioneering activities, in which the AEA and A-VOTE concede they are engaged. (Appellees' Br. at 31; R. 34 at 59-60.) The definition of political activities, even prior to the Alabama Supreme Court's elucidation of the Act, gave the AEA and A-VOTE ample warning they engaged in political activities, and it gave the individual members warning that arranging for payroll deductions to AEA or A-VOTE was prohibited.
Some of AEA and A-VOTE'S conduct indisputably falls within the Act's definition of political activity, and therefore the challengers cannot bring a facial challenge arguing the term is vague based on other applications. It is not substantially likely the challengers will succeed on the merits of their void for vagueness challenge,
For the foregoing reasons, we reverse the district court's order granting a preliminary injunction and remand this case for further proceedings consistent with this opinion.
PARKER, Justice.
In Davis v. Alabama Education Ass'n, 92 So.3d 737 (Ala.2012), this Court summarized the facts underlying this litigation:
92 So.3d at 739-43 (footnote omitted).
On February 25, 2011, the Alabama Education Association ("the AEA"), Alabama Voice of Teachers for Education ("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 AFT Local 2143; and Cynthia R. Lee, a member of AFT Local 2115 (hereinafter referred to collectively as "the IAFF plaintiffs"), filed a complaint in the United States District Court for the Northern District of Alabama, naming as defendants Governor Robert Bentley; Attorney General Luther Strange; then State Superintendent of Education Joseph Morton;
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.
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).
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
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 only mechanisms on the part of the State to make payments to political-action committees and membership organizations that use any portion of their members' dues for political activity; the Act is not meant to prohibit members of such organizations from making payments to those organizations by other mechanisms. Therefore, for purposes of the Act, the phrase "or otherwise" refers to the manner of payment of membership dues to organizations contemplated by the Act only if those payments are processed by the State in a manner similar to a salary deduction.
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
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
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 just presented: telephone calling to encourage people to vote for or against a proposed constitutional amendment. In like manner to subparagraphs d. and e., subparagraph f., which defines political activity as "[d]istributing political literature of any type," goes beyond the reach of electioneering activities in that "political literature of any type" could include literature encouraging people to vote for or against a proposed constitutional amendment.
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
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).
QUESTIONS ANSWERED.
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. ___ So.3d at ___. 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, 129 S.Ct. 1093 (quoting Idaho Code § 44-2602(1)(e) (emphasis added)). The United States Supreme Court held that this restriction did not infringe upon the First Amendment, free-speech rights of the Pocatello Education Association. See Ysursa, 555 U.S. at 358-59, 129 S.Ct. 1093. Moreover, in reaching this holding, the Supreme Court employed the following general rationale that would appear fully applicable to the statute at issue here and the "political activity" with which it is concerned:
555 U.S. at 358, 129 S.Ct. 1093 (citation omitted).
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:
___ So.3d at ___. 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.
Other definitions provided in § 17-17-5(b)(1) also appear broader than mere electioneering. Subsection a. includes as political activity contributing to or contracting with "any entity" engaged in "any form" of political communication. Subsection b. includes "public opinion polling," which reaches far beyond electioneering. The subsections go on to define "political activity" as engaging in "any" type of political advertising, telephone calling for "any political purpose," and distributing political literature of "any type." These on their face are clearly not activities that are limited to electioneering. To the contrary, it appears that the Code section encompasses not only activities that can be characterized as electioneering, but also activities that can be characterized as "issue based" or "issue driven."
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
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 (which this one is not), we are duty-bound to select the one that will uphold its constitutionality. Alabama State Fed'n of Labor v. McAdory, 246 Ala. 1, 10, 18 So.2d 810, 815 (1944). We cannot abandon this duty simply because the determination of this ultimate issue resides with the tribunal certifying the question.
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.
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. I therefore 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.
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:
(Emphasis added.)
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.
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.
However, the use of the connector "including" alters the analysis. As stated in § 17-1-4(a), no city, county, or state employee "shall be denied the right to participate in city, county, or state political activities to the same extent as any other citizen of the State of Alabama, including endorsing candidates and contributing to campaigns of his or her choosing." (Emphasis added.) The specific terms that follow "including," unlike the usual application of the ejusdem generis doctrine, do not necessarily restrict the class of objects embraced by the general term. Instead they typically illustrate or provide examples of the meaning of the general term. "`In construing a statute, the use of a form of the word "include" is significant, and generally thought to imply that terms listed immediately afterwards are an inexhaustive list of examples, rather than a bounded set of applicable items.'" State ex rel. Riley v. Lorillard Tobacco Co., 1 So.3d 1, 12 (Ala.2008) (quoting In re Mark Anthony Constr., Inc., 886 F.2d 1101, 1106 (9th Cir.1989)). See also Federal Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 100, 62 S.Ct. 1, 86 L.Ed. 65 (1941) (noting that "the term `including' is not one of all-embracing definition, but connotes simply an illustrative application of the general principle"); Stansell v. Revolutionary
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, 314-15, 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 315-17, 130 S.Ct. at 2287.
560 U.S. at 817, 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 his or her official authority or position for the purpose of influencing the vote or political action of any person." (Emphasis added.)
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
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 the meaning and intent of each."). Because the plaintiff groups claim that the term "political activity" in § 17-17-5, standing alone, is ambiguous, the use of the term in that section should be harmonized with its use in other parts of the Election Code. "[C]ourts generally turn to an in pari materia analysis to resolve a statutory ambiguity and to ascertain legislative intent." 2B Statutory Construction § 51:3.
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
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 based on their support or failure to support "any candidate for political office." These non-Election Code provisions are consistent with the construction of the term "political activity" as election-related. "The court ... is entitled to look, in its effort to arrive at the intention of the Legislature, to other provisions of the same act, to consider its relation to other statutory and constitutional requirements...." Abramson v. Hard, 229 Ala. 2, 7, 155 So. 590, 594 (1934) (emphasis added). See also Lehman, Durr & Co. v. Robinson, 59 Ala. 219, 234 (1877) ("In construing a statute, regard must be had to the whole act; and, if need be, to other statutes passed on the same subject; for it frequently happens that the meaning of one clause is shown by another that is not stated in connection with it." (emphasis added)).
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
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.
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, and construe its acts as constitutional if their language so permits."); American Booksellers v. Webb, 919 F.2d 1493, 1500 (11th Cir.1990) ("`It has long been a tenet of First Amendment law that in determining a facial challenge to a statute, if it be "readily susceptible" to a narrowing construction that would make it constitutional, it will be upheld.'" (quoting Virginia v. American Booksellers Ass'n, 484 U.S. 383, 397, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988))).
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.
