Neelley v. Walker, et al.
MEMORANDUM OPINION AND ORDER directing that, in accordance with the foregoing analysis, it is ORDERED that Defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART as follows: (1) The motion is GRANTED to the extent that Plaintiff 9;s state-law claims in Counts One and Three of the amended complaint are DISMISSED without prejudice for lack of subject-matter jurisdiction; (2) The motion is DENIED with respect to Defendants motion to dismiss Plaintiff's federal-law claims pursuant to Rule 12(b)(6). Signed by Chief Judge William Keith Watkins on 11/10/2014. (Attachments: # 1 Civil Appeals Checklist)(scn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
JUDITH A. NEELLEY
CLIFFORD WALKER, et al.,
CASE NO. 2:14-CV-269-WKW
MEMORANDUM OPINION AND ORDER
This case presents allegations that the Alabama Legislature overstepped its
bounds by amending a state statute to ensure that Plaintiff Judith A. Neelley, a
former death-row inmate whose sentence was commuted to life imprisonment,
would never become eligible for parole consideration. Plaintiff sues the current
members of the Alabama Board of Pardons and Paroles – Clifford Walker, William
W. Wynne, Jr., and Robert P. Longshore – the officials required to apply
Alabama’s allegedly unconstitutional law against her. Before the court is their
motion to dismiss, (Doc. # 18), which has been fully briefed, (Docs. # 20, 21).
Upon consideration of Plaintiff’s amended complaint, the parties’ arguments, and
the relevant law, the court finds that the motion to dismiss is due to be granted in
part and denied in part.
I. JURISDICTION AND VENUE
Except as noted infra at Part IV.A., the court has subject-matter jurisdiction
pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3). Personal jurisdiction and venue are
II. STANDARD OF REVIEW
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1)
challenges the court’s subject-matter jurisdiction. McElmurray v. Consol. Gov’t of
Augusta–Richmond Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007). On a Rule
12(b)(1) facial attack, the court evaluates whether the plaintiff “has sufficiently
alleged a basis of subject-matter jurisdiction” in the complaint and employs
standards similar to those governing Rule 12(b)(6) review. Houston v. Marod
Supermarkets, Inc., 733 F.3d 1323, 1335 (11th Cir. 2013).
When evaluating a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), the court must take the facts alleged in the complaint as true
and construe them in the light most favorable to the plaintiff. Resnick v. AvMed,
Inc., 693 F.3d 1317, 1321–22 (11th Cir. 2012). To survive Rule 12(b)(6) scrutiny,
“a complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[F]acial
plausibility” exists “when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550 U.S. at 556).
“[A] Rule 12(b)(6) dismissal on statute of limitations grounds is appropriate
only if it is apparent from the face of the complaint that the claim is time-barred.”
La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004) (internal
quotation marks omitted).
On March 22, 1983, Plaintiff was convicted of first-degree murder in the
Circuit Court of DeKalb County, Alabama. Despite a jury’s 10-2 recommendation
that Plaintiff be sentenced to life imprisonment without the possibility of parole,
the trial judge sentenced Plaintiff to death. Plaintiff exhausted all of her state and
federal remedies for challenging her death sentence. On January 15, 1999, four
days after the U.S. Supreme Court denied Plaintiff’s last petition for writ of
certiorari, see Neelley v. Nagle, 525 U.S. 1075 (1999), Governor Fob James, as one
of his final official acts before leaving the governorship, notified the Alabama
Supreme Court that he commuted Plaintiff’s death sentence to “life imprisonment.”
(Doc. # 1-1 (“Pursuant to the authority granted to me by virtue of Amendment No.
38, Constitution of Alabama, I [Governor Fob James, Jr.] hereby commute the
sentence of death of Judith Ann Neel[l]ey to life imprisonment.”).)
represents that no Alabama governor had commuted a death sentence since 1962.
At the time of the commutation, Alabama law provided that “[a]ny person
whose sentence to death has been commuted by the Governor to life imprisonment
shall not be eligible for a parole from the Board of Pardons and Paroles until he
shall have served at least [fifteen] years of such life sentence, and any parole
granted contrary to the provisions of the section shall be void.” Ala. Code § 15-2227(b) (1975). However, Alabama law also provided that a person convicted of a
capital offense must be sentenced to either “life imprisonment without parole or to
death.” Ala. Code § 13A-5-39 (1975).
Perplexed, Defendants’ predecessor members of the Alabama Board of
Pardons and Paroles (“the Board”) inquired of the Alabama Attorney General
whether, in view of § 13A-5-39, Governor James had the authority to commute
Plaintiff’s sentence to life imprisonment as opposed to life imprisonment without
parole. Attorney General Bill Pryor responded that the Governor in fact had that
authority. (See Doc. # 1-2, at 9.) Assuming that parole was a possibility for
Plaintiff, the Board Members also asked whether Plaintiff had to serve fifteen years
from the date her sentence was commuted, or whether her time served under the
death sentence was adequate. The Attorney General advised that Plaintiff would
not be eligible for parole until she had served at least fifteen years of the commuted
life sentence. (Doc. # 1-2, at 11.)
On March 8, 1999, the Board notified Plaintiff that her case would be
considered for parole in January 2014, fifteen years from the date that Governor
James commuted her sentence. On October 1, 2001, counsel for Plaintiff requested
that the Board provide Plaintiff with an initial parole consideration hearing. The
Board responded by reiterating its stance that Plaintiff would not become eligible
for parole consideration until January 2014.
On October 23, 2001, Plaintiff filed a suit for declaratory relief in the Circuit
Court of Montgomery County, Alabama, asking the court to adjudge her
immediately eligible for parole consideration because she had already served
nineteen years in prison, including sixteen-plus years as a death row inmate. The
Circuit Court of Montgomery County denied her request for relief and held that,
pursuant to § 15-22-27(b), Plaintiff would remain ineligible for parole
consideration until she had served fifteen years of her commuted sentence.1
On June 18, 2003, the Alabama Legislature passed Act 2003-300 (“the
Act”), which amended § 15-22-27(b) to provide that “[a]ny person whose sentence
to death has been commuted by the Governor shall not be eligible for a parole.”
(emphasis added). The Act also amended the statute to require that “[a]ny person
The court is unaware of whether that decision was appealed.
whose sentence to death has been commuted by the Governor” remains ineligible
for a grant of parole “unless sufficient evidence is presented to the Board of
Pardons and Paroles to satisfy it that the person was innocent of the crime for
which he or she was convicted, the board votes unanimously to grant the person”
parole, and “the Governor concurs in and approves the granting” of parole. Ala.
Code § 15-22-27(d) (incorporating by reference § 15-22-27(a)). The Legislature
specifically made the Act “retroactive to September 1, 1998.” Ala. Acts 2003-300,
§ 3 (S.B. 49). Plaintiff alleges that the “sponsor and supporters of the legislation
that became [the Act] expressly indicated that the amendment was intended to ‘fix’
Governor James’s commutation of [Plaintiff’s] death sentence and even referred to
it as ‘Neelley’s law.’” (Am. Compl. at ¶ 15.) Plaintiff’s brief cites media reports
from 2002 and 2003 to the same effect. (See Doc. # 20, at 21–22.) There is no
allegation in the amended complaint that Plaintiff herself was aware of the passage
of the Act or its retroactive effect on her case.
In January 2014, when Plaintiff reached the fifteenth anniversary of
Governor James’s commutation of her sentence, her counsel requested that
Defendants, the current members of the Board, provide Plaintiff with a parole
consideration hearing. Defendants, like their predecessors, looked to the Attorney
General’s Office for guidance. On March 31, 2014, the current Attorney General
issued an advisory opinion that Plaintiff is ineligible for parole consideration
because of the retroactive application of the Act amending § 15-22-27. Defendants
informed Plaintiff that she was barred from parole consideration, and Plaintiff
represents that they have continued to deny her an initial parole hearing.
Plaintiff filed this suit on April 10, 2014. The original complaint named the
Board, as opposed to its individual members, as the defendant. The Board moved
to dismiss the complaint, and Plaintiff filed an amended complaint naming the
current Board Members as Defendants. On May 12, 2014, the court denied the
motion to dismiss the original complaint as moot. (Doc. # 16.)
Plaintiff’s amended complaint alleges that the retroactive effect of the Act,
as applied to her, is in violation of (1) the Ex Post Facto Clauses of the United
States and Alabama Constitutions; (2) the United States Constitution’s Bills of
Attainder Clause; and (3) Sections 42 and 43 of the Alabama Constitution, which
provide for the separation of powers among three branches of state government.2
Plaintiff brings her claims pursuant to 42 U.S.C. § 1983 and seeks declaratory and
permanent injunctive relief. Defendants argue that the amended complaint is due
to be dismissed in its entirety.
Like the State legislatures, Congress is also constitutionally barred from passing Bills of
Attainder and ex post facto laws. U.S. Const. art. I, § 9, cl. 3. Unless indicated otherwise, all
references in this opinion to the Ex Post Facto and Bill of Attainder Clauses are to the clauses
applicable to the States in Article I, Section 10 of the United States Constitution.
Defendants assert Plaintiff’s suit for declaratory and injunctive relief, as it
pertains to the constitutionality of the Act under the Alabama Constitution, is
barred by the Eleventh Amendment. The Eleventh Amendment requires that “[t]he
Judicial power of the United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.
Const. amend. XI. “Though by its plain terms the Eleventh Amendment only
precludes federal courts from entertaining suits against a state brought by citizens
of another state, it has been construed to bar suits against a state brought by that
state’s own citizens as well.” McClendon v. Ga. Dep’t of Cmty. Health, 261 F.3d
1252, 1256 (11th Cir. 2001).
Although Defendants may be sued in their official capacities for prospective
injunctive relief for alleged violations of federal law, see Beasley v. Ala. State
Univ., 3 F. Supp. 2d 1304, 1307 (M.D. Ala. 1998) (citing Ex Parte Young, 209
U.S. 123 (1908)), Defendants are not subject to suit in federal court for prospective
injunctive relief for alleged violations of the Alabama Constitution.
Supreme Court has explained, “it is difficult to think of a greater intrusion on state
sovereignty than when a federal court instructs state officials on how to conform
their conduct to state law. Such a result conflicts directly with the principles of
federalism that underlie the Eleventh Amendment.” Pennhurst State Sch. & Hosp.
v. Halderman, 465 U.S. 89, 106 (1984). A federal court thus lacks subject-matter
jurisdiction to hear any claim barred by the Eleventh Amendment. McLendon, 261
F.3d at 1256.
Plaintiff responds that Defendants’ argument is “well-taken,” and admits
that Count Three of her amended complaint “should be dismissed without
prejudice to her ability to pursue that claim in state court.” (Doc. # 20, at 3 n.1.)
Defendants reply that Plaintiff fails to acknowledge “that the rest of [the pleading]
is peppered with references to Alabama constitutional provisions and case law,”
and that Count One specifically cites the Alabama Constitution as a legal basis for
relief. (Doc. # 21, at 1.) It is not problematic that Plaintiff cites Alabama law to
dress the stage for her federal constitutional claims, but the court agrees that it
lacks subject-matter jurisdiction over Plaintiff’s request for declaratory and
injunctive relief related to the lawfulness of the Act, as applied to Plaintiff, under
the Alabama Constitution. Hence, Count One, to the extent that it relies upon
Article I, § 22 of the Alabama Constitution, which prohibits the passage of ex post
facto laws, and Count Three, in its entirety, are due to be dismissed without
prejudice for lack of subject-matter jurisdiction.
Defendants assert two grounds for dismissal of the federal-law claims
pursuant to Rule 12(b)(6): first, the claims are barred by § 1983’s two-year statute
of limitations; and second, Plaintiff fails to state federal-law claims upon which
relief can be granted. Each argument is addressed in turn.
Statute of Limitations Defense
Defendants argue that Plaintiff’s constitutional injuries accrued on the date
the Act was made effective – September 1, 2003. Thus, Defendants assert that
Plaintiff’s § 1983 action must have been brought within two years of September 1,
2003, in order to satisfy the two-year statute of limitations. See McNair v. Allen,
515 F.3d 1168, 1173 (11th Cir. 2008) (“All constitutional claims brought under
§ 1983 are tort actions, subject to the statute of limitations governing personal
injury actions in the state where the § 1983 action has been brought.” (citing the
two-year statute of limitations set out in Ala. Code § 6-2-38)). “Generally, the
statute of limitations does not begin to run until the facts which would support a
cause of action are apparent or should be apparent to a person with a reasonably
prudent regard for his rights.” Lovett v. Ray, 327 F.3d 1181, 1182 (11th Cir.
2003). Defendants suggest that Plaintiff knew or should have known of her right
to assert her federal-law claims in 2003, when the Legislature passed the Act
amending § 15-22-27.
Plaintiff counters that “Defendants do not offer any argument or authority to
support their assertion that the mere passage of [the Act in 2003], without more,
provided [her] with sufficient facts to make it apparent that her Constitutional
rights had been violated.” (Doc. # 20, at 5.) Plaintiff points out her allegations
that she was repeatedly informed by the Board and the Montgomery County
Circuit Court that she remained legally ineligible for parole consideration until
January 2014. (See Am. Compl. at ¶¶ 9, 10, 12.) She emphasizes that her federal
constitutional claims are as-applied challenges to the Act, as opposed to facial
challenges, and thus, they “did not accrue until 2014 when the Defendants applied
the Act retroactively to deny [her] request for parole consideration.” (Doc. # 20,
at 8; see also Doc. # 20, at 10.)
Defendants reply that Plaintiff “seeks to escape application of the two-year
statute of limitations by shifting responsibility for the retroactive application of
[the Act] from the Alabama Legislature to the Defendants” who “lack discretion to
contradict th[e] mandate” of the Legislature.
(Doc. # 21, at 2, 4.)
Defendants’ argument create any confusion, there is no dispute that the members
of the Board are the proper parties in this suit. Rather, Defendants’ position is that
Plaintiff’s grievance is really with a decision of the Legislature many years ago –
not with Defendants’ recent denial of Plaintiff’s request comporting with the terms
of the Act. In other words, the Act was made retroactively applicable to Plaintiff
upon its passage in 2003 – not upon Defendants’ denial of her request for parole
consideration in 2014. Defendants’ reply further asserts that Eleventh Circuit
precedents stand for the proposition that “a procedural change which renders an
inmate ineligible for parole triggers the running of the applicable statute of
limitations.” (Doc. # 21, at 3 (citing McNair, 515 F.3d at 1174–75).)
But that is not precisely what Eleventh Circuit authorities instruct. The
standard is that the statute of limitations begins to run once “the facts which
support a cause of action are apparent or should be apparent to a person with a
reasonably prudent regard for his rights” – not when the rules concerning a
plaintiff’s parole eligibility change. Lovett, 327 F.3d at 1182; see also McNair,
515 F.3d at 1174–75; Porter v. Ray, 461 F.3d 1315, 1323 (11th Cir. 2006); Brown
v. Ga. Bd. of Pardons & Paroles, 335 F.3d 1259, 1261 (11th Cir. 2003).
In Lovett, the court held that the plaintiff knew or should have known of his
cause of action at the time he was notified that he would not be reconsidered for
parole until a certain date. 327 F.3d at 1182. And in Brown, the court held that the
plaintiff’s “injury, to the extent it ever existed, was when the Georgia Parole Board
applied its new [parole consideration] policy” to the plaintiff. 335 F.3d. at 1261–
62. (emphasis added). At that point, the Circuit reasoned, the plaintiff “could have
discovered the factual predicate of his [ex post facto] claim.”
Id. at 1262.
Plaintiff’s brief emphasizes the holding in Brown; Defendants have not attempted
to distinguish it in their reply.
When determining whether facts were apparent or should have been
apparent to a plaintiff to justify the running of the statute of limitations, a court
may “impute[ to the plaintiff] constructive, rather than actual, knowledge” of the
alleged constitutional violation. Williams v. City of Tampa Police Dep’t, 216
F. App’x 915, 916 (11th Cir. 2007). But in view of Lovett and Brown, it is
improper to impute knowledge of Plaintiff’s federal-law claims to her when there
is no allegation in her amended complaint that the Board informed her, prior to
2014, that it would apply the Act retroactively to her. For this reason, it is not
apparent from the face of Plaintiff’s pleading that her federal-law claims are timebarred, see La Grasta, 358 F.3d at 845, and Defendants’ motion to dismiss based
on the running of the statute of limitations is due to be denied.3 4
As an aside, Plaintiff proposes in a footnote that, if she had filed this suit within two
years of the Act’s passage in 2003, as Defendants assert she should have, Defendants (or their
predecessors) would have opposed the suit as unripe because Plaintiff was, at that time, ineligible
for parole consideration and had yet to request parole consideration. (Doc. # 20, at 5 n.2.) Her
proposal is not far-fetched, but the court will not speculate as to what Defendants might have
argued if pressed to defend the Act between 2003 and 2005, or how that hypothetical scenario
might impact Defendants’ arguments today.
Plaintiff argues alternatively that the statute of limitations is subject to equitable tolling.
Just as Alabama’s statute of limitations applies to Plaintiff’s § 1983 claims, so also Alabama’s
rules for equitable tolling apply. See Wallace v. Kato, 549 U.S. 384, 394 (2007). The Supreme
Court of Alabama has held that a person seeking to equitably toll a statute of limitations must
establish “(1) that [s]he has been pursuing h[er] rights diligently, and (2) that some extraordinary
circumstance stood in h[er] way as to the filing of h[er] action.” Weaver v. Firestone, ___ So. 3d
____, 2013 WL 6516389, at *4 (Ala. 2013); cf. Sandvik v. United States, 177 F.3d 1269, 1271
Defendants are skeptical that Plaintiff was without actual knowledge of the
Act’s retroactive application to her considering the ample media coverage given to
both Governor James’s commutation of her sentence and the Legislature’s reaction
to “fix” the unpopular possibility that Plaintiff might obtain parole. (See Doc.
# 21, at 6 n.2; see also Am. Compl. at ¶ 15.) The evidence to be discovered in this
case may later support Defendants’ assertion that Plaintiff neglected to timely act
upon long-apparent facts supporting her claims, but at the 12(b)(6) stage, the court
considers the amended complaint’s allegations alone.
Failure to State Federal-Law Claims
Defendants argue that Plaintiff’s amended complaint fails to state valid
claims that the application of the Act violates the United States Constitution’s Ex
Post Facto and Bill of Attainder Clauses.
Ex Post Facto Clause
The Constitution prohibits the States from passing ex post facto laws. U.S.
Const. art. I, § 10. “To fall within the ex post facto prohibition, a law must be
retrospective – that is, ‘it must apply to events occurring before its enactment’ –
(11th Cir. 1999) (“Equitable tolling is appropriate when a movant untimely files because of
extraordinary circumstances that are both beyond h[er] control and unavoidable even with
diligence.”). Defendants argue that Plaintiff’s ignorance of the law (specifically, the Act and its
retroactive effect) is not an extraordinary circumstance warranting tolling. A court assessing
equitable tolling should engage in a fact-specific inquiry, see Weaver, at *5, and the only facts
before this court are those alleged in the amended complaint. The court makes no finding as to
whether the statute of limitations should be equitably tolled for Plaintiff, assuming the statute of
limitations has run.
and it ‘must disadvantage the offender affected by it’ by altering the definition of
criminal conduct or increasing the punishment for the crime.” Lynce v. Mathis,
519 U.S. 433, 441 (1997) (quoting Weaver v. Graham, 450 U.S. 24, 29 (1981))
(internal citation omitted). There appears to be no dispute that the Act in this case
is retrospective. What is contested is whether the Act impermissibly increases
Plaintiff’s punishment. Defendants claim that the Act is not punitive, but even if it
were, Plaintiff’s current punishment pursuant to the Act (life imprisonment without
parole) was a punishment “annexed” to the crime at the time that Plaintiff
committed first-degree murder. (Doc. # 18, at ¶ 10.) Hence, Defendants assert that
the Act is not “more onerous than the law in effect on the date of [Plaintiff’s
criminal] offense.” Weaver v. Graham, 450 U.S. 24, 30–31 (1981).
Plaintiff responds that an increased sentence from life imprisonment with the
possibility of parole to life imprisonment without the possibility of parole is indeed
“punitive.” She notes, among other authorities, the Supreme Court’s dicta in
Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 663 (1974), that “only
an unusual prisoner could be expected to think that he was not suffering a penalty
when he was denied eligibility for parole,” and that the repeal “of parole eligibility
previously available to imprisoned offenders would clearly [implicate] the ex post
facto clause” applicable to Congress in Article I, Section 9. (See Doc. # 20, at 14–
17.) In the absence of any authority from Defendants to support their contention
that the Act is not punitive, the court concludes for purposes of the instant motion
to dismiss, that the legislative adjustment of a sentence to remove the possibility of
parole is in fact punitive in nature.
Plaintiff further argues that it makes no difference that she was not, as a
capital offender, parole-eligible when she was originally sentenced to death in
1983. (Doc. # 20, at 17.) The sentence that matters for purposes of her claim, she
says, is her 1999 commuted sentence to life imprisonment. Citing Alabama case
law emphasizing the legal import of her commuted sentence, she asserts that her ex
post facto claim arises from the Legislature’s effort to impose a harsher sentence
than the one granted by Governor James. (Doc. # 20, at 18.)
In reply, Defendants emphasize the four categories of law which Justice
Chase classified as ex post facto laws in his separate opinion in Calder v. Bull, 3
U.S. 386, 390 (1798). The Supreme Court has often referenced these categories
when discussing cases presenting ex post facto questions:
1st. Every law that makes an action, done before the passing of the
law, and which was innocent when done, criminal; and punishes such
action. 2nd. Every law that aggravates a crime, or makes it greater
than it was, when committed. 3rd. Every law that changes the
punishment, and inflicts a greater punishment, than the law annexed
to the crime, when committed. 4th. Every law that alters the legal
rules of evidence, and receives less, or different, testimony, than the
law required at the time of the commission of the offence, in order to
convict the offender.
Id. (emphasis added). The third category is the sort of ex post facto claim most
frequently litigated before the Supreme Court, see Lynce, 519 U.S. at 441, and it is
the one most like Plaintiff’s claim.
Defendants seize upon the words “when
committed,” arguing that “the proper benchmark for an ex post facto inquiry is the
rule of ‘law at the time when the [criminal] act was committed.’” (Doc. # 21, at 9
(citing Dobbert v. Florida, 432 U.S. 282, 292 (1977)); see also Weaver, 450 U.S.
at 30 (“Critical to relief under the Ex Post Facto Clause is not an individual’s right
to less punishment, but the lack of fair notice and governmental restraint when the
legislature increases punishment beyond what was prescribed when the crime was
consummated.”) (emphasis added); Johnson v. United States, 529 U.S. 694, 699
(2000) (“To prevail on [an] ex post facto claim, [the plaintiff] must show . . . that
the law he challenges . . . raises the penalty from whatever the law provided when
he acted.”) (emphasis added).)5
While these authorities make it manifest that there is ordinarily no ex post
facto violation when the Legislature does not retroactively increase the punishment
that was annexed to a crime at the time the crime was committed, none addresses
At this juncture, Defendants’ strategy in briefing the motion to dismiss hinders optimal
analysis. The motion to dismiss presents four-and-a-half pages of argument against substantive
federal constitutional claims and is a mere skeleton of a brief. Defendants waited until filing a
reply brief to develop their arguments – arguments that existed all along – which deprived
Plaintiff of the opportunity to fully engage with Defendants’ arguments in her opposition brief.
Perhaps Defendants were pressed for time when they filed the motion to dismiss; perhaps they
believed that arguing generally at the outset and specifically at the finish would be to their
advantage; perhaps there is some other explanation. Whatever the motivation, the result is that
Defendants must repeat their effort and develop their arguments again at a later stage.
the truly extraordinary situation of a legislative branch retroactively increasing a
punishment declared by the executive branch in a commuted sentence. It is noted
that Justice Chase’s list of ex post facto laws in Calder was not exhaustive. See 3
U.S. at 391 (“All these, and similar laws, are manifestly unjust and oppressive.”).
That Plaintiff’s case is atypical does not mean that Plaintiff has not pleaded a
legally cognizable claim for violation of the Ex Post Facto Clause. Plaintiff has
pleaded facts that show that the Act (1) applies retroactively to her, and (2)
disadvantages her by increasing the punishment for her crime. See Lynce, 519 U.S.
at 441. Additionally, the Act, as applied to Plaintiff, “implicate[s] the central
concerns of the Ex Post Facto Clause: the lack of fair notice and [lack of]
governmental restraint” that accompany a retrospective increase in punishment.
Id. (internal quotation marks omitted).
It is true that the sentence that Defendants say that Plaintiff must receive –
life imprisonment without parole – is one of the two statutory sentences Plaintiff
could have received when she committed murder in 1982. But the punishment that
the Alabama Legislature annexed to the crime of first-degree murder in 1982 and
that the sentencing judge was required to follow in 1983 is not legally relevant to
Plaintiff’s claim. Plaintiff is serving a commuted sentence, and her commuted
sentence is now the only legal sentence in the universe of possible, legal sentences
for her crime. Hence, it appears that the pertinent question must be what terms of
parole eligibility were annexed by Alabama law to a state defendant’s commuted
capital murder sentence. The answer is plain. In 1982, when Plaintiff committed
murder, and in 1999 when Governor James commuted her sentence to life
imprisonment, Alabama law made a person in her position eligible for parole after
serving fifteen years of her commuted life sentence. See Ala. Code § 15-22-27(b)
(1975). Life with the possibility of parole after fifteen years’ imprisonment is
clearly a more advantageous punishment than the new punishment set by the Act
and applied by Defendants, which eliminates the possibility that Plaintiff will ever
become eligible for parole consideration.
For these reasons, Plaintiff has stated a valid claim under the Ex Post Facto
Bill of Attainder Clause
The Constitution forbids the States from “pass[ing] any Bill of Attainder.”
U.S. Const. art. I, § 10. Like the Ex Post Facto Clause, the Bill of Attainder
Clause “is a general provision against arbitrary and tyrannical legislation over
existing rights, whether of person or property.” Nixon v. Adm’r of Gen. Servs., 433
U.S. 425, 538 (1977). The Clause “was intended . . . as an implementation of the
separation of powers, a general safeguard against legislative exercise of the judicial
function, or more simply – trial by legislature.” United States v. Brown, 381 U.S.
437, 442 (1965); see also id. at 446 (“It is the peculiar province of the legislature to
prescribe general rules for the government of society; the application of those rules
to individuals in society would seem to be the duty of other departments.” (quoting
Fletcher v. Peck, 10 U.S. 87 (1810)). The three hallmarks of a bill of attainder are
(1) the infliction of punishment; (2) “a specific designation of persons or groups as
subjects of the legislation,” and (3) an “arbitrary deprivation” of individual rights
“without notice, trial, or other hearing.” Nixon, 433 U.S. at 538–39.
Defendants repeat their objection that the Act is not “punitive” in nature, but
the argument is conclusory in both the motion to dismiss and the reply brief.6
Assuming that the Act is punitive, Defendants argue that the Act does not apply to
named persons or to easily ascertainable members of a group, and does not “mete
out punishment in a ‘summary’ manner.” (Doc. # 21, at 10 (citing Landgraf v. USI
Film Prods., 511 U.S. 244, 266 (1994).)
Although the Act does not mention Plaintiff by name, the facts in Plaintiff’s
amended complaint plausibly support her allegation that she was targeted by the
Legislature’s amendment to § 15-22-27(b) – not only because the legislators
sponsoring the bill allegedly vocalized their intent to “fix” Governor James’s
supposed error, but also because Plaintiff is the only person to receive a commuted
sentence since 1962, and because the Legislature suspiciously made the Act
The objection that the Act is non-punitive is likely baseless. See Laurence H. Tribe,
American Constitutional Law § 10-4 n.9 (2d. ed.1988) (“The concept of punishment under the
bill of attainder clauses has always been a fairly broad one.”).
retroactive to four months prior to the January 1999 commutation.
Defendants’ objection that the law does not designate her is not well-taken.
Defendants’ final objection that the amended complaint fails to allege that
the Legislature meted out punishment in “summary” fashion is unsupported by any
meaningful legal analysis. The sole supportive case cited in Defendants’ reply
brief – Landgraf – only mentions bills of attainder in passing when listing the
Constitution’s several expressions of “the antiretroactivity principle.” 511 U.S.
at 266. Hence, looking to Landgraf is unhelpful. Defendants assert that the Act
has not imposed punishment upon Plaintiff “without a judicial trial,” citing
Plaintiffs’ judicial conviction for murder in Alabama state court. (Doc. # 18,
at ¶ 12.) Plaintiff responds that, “[i]f the mere fact that a plaintiff had previously
been [judicially] tried were a disqualification” to her right to bring a bill of
attainder claim, then “no convicted criminal could ever complain about any
subsequent unconstitutional laws that otherwise met the definition of a bill of
attainder.” (Doc. # 20, at 23 (emphasis added).)
Because Plaintiff’s case is unique, it is difficult to say that Plaintiff has
failed to state a claim under the Bill of Attainder Clause, especially in the absence
of well-developed arguments supporting that conclusion. In a more typical case, a
legislative body would have circumvented or contravened the judicial process of a
trial or hearing before an impartial arbiter, using a statute to declare a person’s
conduct criminal. But here, Plaintiff’s guilt had been properly adjudicated; only
her punishment concerned the Legislature. The court is unaware of any judicial
process that may have existed to do properly what the Legislature allegedly
intended to do – i.e., revoke the legal possibility of Plaintiff’s eligibility for parole
consideration. Yet the oddness of the nature of the Legislature’s action does not
negate the fact that Plaintiff has pleaded facts supporting her claim that she was
arbitrarily deprived of her right to seek parole consideration in 2014 without any
opportunity to contest the deprivation.
Therefore, Defendants’ motion to dismiss Plaintiff’s bill of attainder claim is
due to be denied.
In accordance with the foregoing analysis, it is ORDERED that Defendants’
motion to dismiss is GRANTED IN PART and DENIED IN PART as follows:
The motion is GRANTED to the extent that Plaintiff’s state-law
claims in Counts One and Three of the amended complaint are
DISMISSED without prejudice for lack of subject-matter jurisdiction;
The motion is DENIED with respect to Defendants’ motion to dismiss
Plaintiff’s federal-law claims pursuant to Rule 12(b)(6).
DONE this 10th day of November, 2014.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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