Voketz v. Decatur, Alabama, City of et al

Filing 93

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 09/15/2020. (AKD)

FILED
2020 Sep-15 AM 08:26
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
GARY VOKETZ,
Plaintiff,
v.
THE CITY OF DECATUR,
et al.,
Defendants.

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CIVIL ACTION NUMBER:
5:14-CV-00540-AKK

MEMORANDUM OPINION
Gary Voketz brings this action for declaratory and injunctive relief against the
City of Decatur, Alabama, and its city councilmembers.1 For more than a decade,
Voketz has campaigned to implement a council-manager form of government in
Decatur to replace the city’s current mayor-council government. Decatur voters
approved the switch in a 2010 referendum, and the defendants struggled to make the
transition for two years. But after concluding that then-controlling state law barred
them from adopting a council-manager government without violating either the
Voting Rights Act (“VRA”) or the Equal Protection Clause, the defendants refused
to honor the referendum.

Several African American residents of Decatur’s current majority black city council district have
intervened as defendants. See docs. 20, 26. These intervening defendants join the city defendants
in all pending motions. See docs. 84, 90, 91.
1

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Voketz then filed this action in state court, seeking to enforce the referendum
notwithstanding its potential voting rights implications. The defendants removed the
case to this court using a Reconstruction Era statute creating jurisdiction over cases
in which government officials refuse to take actions that might violate federal law.
After rejecting Voketz’s first motion for remand, the court eventually granted
summary judgment in favor of the defendants. The Eleventh Circuit reversed,
sending this case back to the court for further proceedings.
While that appeal was pending, however, the Alabama legislature amended
the statute authorizing a council-manager government. The legislature then amended
the statute again in 2019. As a result, the defendants say Voketz’s claims are moot.
They filed two motions to that effect, and Voketz responded with a second motion
for remand. The court holds that the 2018 and 2019 amendments do not affect the
court’s jurisdiction over this case, but that the 2019 amendment precludes the court
from granting Voketz meaningful relief. Therefore, the court will dismiss this case
as moot.
I.
The court has exhaustively, and repeatedly, described the basic facts of this
case. See docs. 24, 48, 70. So too has the Eleventh Circuit. See Voketz v. City of
Decatur, Ala., 904 F.3d 902 (11th Cir. 2018). Rather than retread that ground, the

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court begins its discussion of the facts from 2018, when the now relevant events
occurred. That September, the Eleventh Circuit ruled that § 5 of the VRA did not
prohibit Decatur from implementing the 2010 referendum. Id. at 910. The Circuit
emphasized that the retroactivity of the Supreme Court’s decision in Shelby County
v. Holder, which gutted § 5 by ruling that the coverage formula contained in § 4(b)
of the VRA was unconstitutional, was not an issue here because Voketz seeks only
prospective relief. Id. at 908–10 (citing Shelby, 570 U.S. 529 (2013)). The Circuit
declined, however, to rule on the validity of Decatur’s other rationales for refusing
to adopt a council-manager government: that doing so would violate either § 2 of the
VRA, the Fourteenth Amendment’s Equal Protection Clause, or state law. Id. at 910.
Meanwhile, in spring 2018, the Alabama legislature amended the Council
Manager Act of 1982 (“CMA”), which establishes the framework for adopting a
council-manager government. Doc. 88-1. Until then, the defendants had contended
that implementing the 2010 referendum under the unamended CMA was impossible
given Decatur’s current districting scheme. See, e.g., docs. 1, 4, 34. Decatur now has
five city councilmembers elected from five single-member districts. Doc. 13 at 3. In
one district, African Americans comprise the voting-age majority. Id. But the
unamended CMA required municipalities adopting a council-manager government
to instead have three councilmembers elected from single-member districts and two
elected at large. Id. According to the defendants, moving to three single-member
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districts required eliminating the African American majority district, potentially
violating § 2 of the VRA by diluting minority voting power. Id. at 4. That was
because another CMA provision required that the voting districts “contain[] as
nearly an equal number of people as possible.” Id.; Ala. Code § 11-43A-9. Decatur’s
black voting-age population was allegedly too small and geographically dispersed
for the defendants to comply with both these provisions of the unamended CMA.
The 2018 CMA amendment resolved these problems by increasing the
required number of single-member districts from three to either four or six. It
provided, “If a municipality has single-member districts for the election of council
members when the council-manager form of government is adopted in the
municipality, the municipality shall continue with either four or six council members
elected from single-member districts and the mayor shall be elected at large.” Doc.
88-1 at 4. Moreover, the 2018 amendment empowered municipalities to adopt a
council-manager government “by resolution of the council,” without any
referendum. Id. at 3. These changes applied “[n]otwithstanding any other provision”
of the CMA. Id. The amendment thus freed the defendants from the need to eliminate
Decatur’s African American majority voting district, potentially obviating any
voting rights concerns.
Voketz recognized as much. In June 2018, while his case pended on appeal,
Voketz’s lawyers wrote to the defendants explaining the import of the 2018 CMA
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amendment. Doc. 88-2. As they put it, “The amendment cures the defects that the
city’s attorneys have alleged exist in the law that have prevented implementation
after the voters passed the referendum . . . . The Section Two [of the VRA] arguments
that the city has made centered around having only three council districts are now
moot.” Doc. 88-2 at 3. The lawyers concluded that “[t]he legislature has provided a
way to bring this matter to a conclusion and allow the majority vote of the citizens
of Decatur that approved the Council Manager Act to be honored.” Id.
But the legislature amended the CMA again in June 2019. That amendment
retained the revised districting requirements of the preceding year’s amendment
while changing the procedures for approving a transition to a council-manager
government. First, it reimposed the rejected referendum requirement, eliminating a
municipality’s authority to adopt a council-manager government. See doc. 88-3 at
3–4; Ala. Code § 11-43A-1.1. Second, it dictated new guidelines for conducting the
referendum. Under the 2019 amendment, any ballot initiative proposing that a
municipality adopt a council-manager government “shall indicate the composition
of the mayor and council should the council-manager form of government be
adopted.” Doc. 88-3 at 4; § 11-43A-1.1. In other words, the question on the ballot
must now specify how many members of a municipality’s city council—in this case,
either four or six—will be elected from single-member districts.

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In light of these amendments, the defendants filed a motion for judgment on
the pleadings, contending that the CMA amendments rendered this action moot.
Doc. 82. For his part, Voketz filed a “renewed” motion for remand. Doc. 86. The
defendants then moved for summary judgment, again contending that undisputed
material facts establish that the action is moot. Doc. 88. The court will first rule on
Voketz’s motion for remand before determining whether this matter is moot.
II.
The defendants removed this case to this court under 28 U.S.C. § 1443(2),
which the court addressed in its order denying Voketz’s first motion for remand.
Doc. 24. As explained then, § 1443(2) enables government officials to remove
matters to federal court when a “colorable conflict between state and federal law”
causes their “refusal to follow plaintiff’s interpretation of state law because of a good
faith belief that to do so would violate federal law.” Id. at 7 (quoting Alonzo v. City
of Corpus Christi, 68 F.3d 944, 946 (5th Cir. 1995)). “That good faith belief is tested
objectively, in that the claim to that effect of the removing defendant must be
‘colorable.’” Id. (quoting White v. Wellington, 627 F.2d 582, 587 (2d. Cir. 1980)).
In concluding that § 1443(2) removal applied here, the court observed that the
defendants’ allegations “clearly state a colorable conflict between state and federal
law” because the defendants allege that implementing the results of the 2010

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referendum would be impossible without violating federal law. Id. at 11. In
particular, the defendants allege that implementing the 2010 referendum would have
violated either § 2 of the VRA by impermissibly diluting African American voting
power in the city, or the Equal Protection Clause by creating voting districts with
impermissible population deviations. Id. Because those allegations established a
colorable conflict between state and federal law, the court denied the motion to
remand. The court also acknowledged that removal under § 1443(2) is seldom
invoked because the statute has historically been limited to “state officers, and those
acting with or for them including local and municipal officers. These ordinarily
prefer to litigate in the state court.” Id. at 7 n.2 (quoting White, 627 F.2d at 585–86).
The relative obscurity of this removal statute appears to have led Voketz to
misunderstand its relationship with supplemental jurisdiction under 28 U.S.C. §
1367. Voketz “request[s] that this Court decline to exercise its supplemental
jurisdiction over the questions of state law presented in the defendants’ [motions],
as allowed under 28 U.S.C. § 1367(c)(1),” and therefore order remand. Doc. 86 at 2
¶ 6. Section 1367(a) provides that “in any civil action of which the district courts
have original jurisdiction, the district courts shall have supplemental jurisdiction
over all other claims that are so related to claims in the action within such original
jurisdiction that they form part of the same case or controversy under Article III of
the United States Constitution.” 28 U.S.C. § 1367(a). Thus, if a claim based on state
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law was sufficiently related to a claim falling within the court’s original jurisdiction,
the court could exercise supplemental jurisdiction over the state law claim. Federal
courts have discretion, however, under § 1367(c) to decline to exercise supplemental
jurisdiction if, among other factors, an additional claim “raises a novel or complex
issue of State law.” § 1367(c)(1).
Seizing on that exception, Voketz asserts that the defendants’ reliance on two
“newly enacted Alabama statutes” in their pending motions introduces a “novel
issue” implicating § 1367(c)(1). Doc. 86 at 2 ¶ 7. But Voketz overlooks that this case
presents only one claim, and it falls within the court’s original—not supplemental—
jurisdiction. Voketz’s single claim, admittedly brought under state law, is that the
defendants have unlawfully refused to implement the results of an election. The
defendants in turn raised the specter of a quandary—a colorable conflict between
state and federal law and their belief that compliance with the state law would cause
them to violate federal law. In doing so, the defendant’s made the case removable
under § 1443(2). Removed cases fall within this court’s original jurisdiction.
Freeman v. Bee Mach. Co., 319 U.S. 448, 452 (1943); 14C Wright & Miller, Federal
Practice & Procedure: Jurisdiction § 3721 (4th ed. 2020). To be sure, the defendants’
pending motions implicate state law issues. But that does not establish a separate
state law claim triggering supplemental jurisdiction. Accordingly, because the court

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has not exercised supplemental jurisdiction in this case, it cannot “decline to
exercise” that jurisdiction.
Likewise, Voketz’s reliance on Baggett v. First National Bank of Gainesville
for the proposition that a state court “should be the final arbiter[] of [this] state law”
is misplaced. Doc. 86 at 2 ¶ 7 (quoting 117 F.3d 1342, 1353 (11th Cir. 1997)). In
Baggett, the Eleventh Circuit affirmed and adopted a district court opinion declining
to exercise supplemental jurisdiction over state law claims remaining after the
district court dismissed the plaintiffs’ underlying federal question claim. 117 F.3d at
1352. With the federal claim dismissed, resolution of the plaintiffs’ remaining state
law claims depended exclusively “on determinations of state law.” Id. at 1353. The
district court therefore ruled that considerations of “judicial economy, fairness,
convenience, and comity dictate[d] having these state law claims decided by the state
courts.” Id. But because original jurisdiction applies here, rather than supplemental
jurisdiction, those prudential considerations do not apply. See White, 627 F.2d at 586
(“[T]he right to remove [under § 1443(2)] is statutory, jurisdictional and absolute,
regardless of motivation, when it is found to exist.”). Therefore, because Voketz
does not allege that the court has lost removal jurisdiction over this matter in light

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of the state law amendments in 2018 and 2019,2 Voketz’s renewed motion for
remand is due to be denied.
III.
Although the colorable conflicts between state and federal law in this case
authorize jurisdiction under § 1443(2), more familiar jurisdictional constraints also
apply. As “courts of limited jurisdiction,” federal courts can hear only matters
involving “enumerated categories of ‘Cases’ and ‘Controversies.’” Gardner v. Mutz,
962 F.3d 1329, 1336 (11th Cir. 2020) (quoting Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377 (1994)). The three “strands” of this “case-or-controversy
requirement” include standing, ripeness, and mootness. Id. (quoting Christian Coal.
of Fla., Inc. v. United States, 662 F.3d 1182, 1189 (11th Cir. 2011)).
The defendants challenge the court’s ability to hear this case based on
mootness. The mootness doctrine “derives directly from the case-or-controversy
limitation because an action that is moot cannot be characterized as an active case
or controversy.” Troiano v. Supervisor of Elections in Palm Beach Cty., Fla., 382
F.3d 1276, 1282 (11th Cir. 2004). A case becomes moot once it “no longer presents
a live controversy with respect to which the court can give meaningful relief.” Id.

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Nor could he take such a position because the court determines jurisdiction at the time of removal.
Leonard v. Enter. Rent a Car, 279 F.3d 967, 972 (11th Cir. 2002); Pintando v. Miami-Dade Hous.
Agency, 501 F.3d 1241, 1243 n.2 (11th Cir. 2007).
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This can occur due to either “a change in circumstances” or “a change in the law.”
Coral Springs St. Sys., Inc. v. City of Sunrise, Fla., 371 F.3d 1320, 1328 (11th Cir.
2004). “Plainly, if a suit is moot, it cannot present an Article III case or controversy
and the federal courts lack subject matter jurisdiction to entertain it.” Id.
A.
Before determining whether this case is moot, the court must address a related
procedural issue. The defendants assert their mootness challenge through a motion
for summary judgment.3 Under the Federal Rules of Civil Procedure, summary
judgment is appropriate “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. Pro. 56(a). However, challenges to subject matter jurisdiction are “appropriately
dealt with by means of a motion to dismiss under Federal Rule of Civil Procedure
Rule 12(b)(1).” Troiano, 382 F.3d at 1278 n.2. The Eleventh Circuit has thus
“repeatedly” admonished district courts for “mistakenly” disposing of cases on
“justiciability (mootness) grounds” by summary judgment. Sheely v. MRI Radiology
Network, P.A., 505 F.3d 1173, 1182 (11th Cir. 2007). Instead, a district court should
treat a motion for summary judgment based on mootness as a motion to dismiss for

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In addition to their motion for summary judgment, the defendants submitted a motion for
judgment on the pleadings. Doc. 82. Because the defendants make the same arguments related to
mootness in their motion for judgment on the pleadings, the court considers both motions together
while referencing only the motion for summary judgment.
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lack of subject matter jurisdiction. See id. (treating a district court’s ruling on
summary judgment “as if it was a ruling on a motion to dismiss”); Harrell v. The
Fla. Bar, 608 F.3d 1241, 1253 n.2 (11th Cir. 2010) (same). Accordingly, the court
construes the defendants’ motion as one for lack of subject matter jurisdiction under
Rule 12(b)(1). 4
Challenges to subject matter jurisdiction under 12(b)(1) are either “facial” or
“factual.” Morrison v. Amway Corp., 323 F.3d 920, 925 n.5 (11th Cir. 2003). In a
facial attack, the defendant challenges jurisdiction “based on the allegations in the
complaint, and the district court takes the allegations as true in deciding whether to
grant the motion.” Id. (quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th
Cir.1990)). The plaintiff thus receives “safeguards similar to those retained when a
Rule 12(b)(6) motion to dismiss for failure to state a claim is raised.” McElmurray
v. Consol. Gov’t of Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir. 2007).
Factual attacks, in contrast, “challenge subject matter jurisdiction in fact,
irrespective of the pleadings.” Morrison, 323 F.3d at 925 n.5. District courts can

The Eleventh Circuit has “cautioned, however, that the district court should only rely on Rule
12(b)(1) if the facts necessary to sustain jurisdiction do not implicate the merits of plaintiff’s cause
of action.” Morrison, 323 F.3d at 925 (alteration and quotation omitted). If jurisdictional facts
implicate the underlying merits, then the district court should find that jurisdiction exists and
proceed to address the merits under either Rule 12(b)(6) or Rule 56. Id. But because the defendants’
challenge is based “on mootness grounds solely,” their motion does not implicate the underlying
merits, and the court will proceed under Rule 12(b)(1). Smith v. Morgan, No. 5:18-CV-01111AKK, 2019 WL 1930764, at *3 (N.D. Ala. May 1, 2019).
4

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therefore consider “extrinsic evidence” when resolving a factual attack. Id.
Moreover, if a defendant properly asserts a factual attack, then a court need not
presume the truthfulness of the plaintiff’s allegations, and the presence of disputed
material facts will not bar a court from evaluating the merits of a jurisdictional issue.
Id. at 925 (citing Lawrence, 919 F.2d at 1529). Finally, a district court resolving a
factual attack may dismiss a case for lack of subject matter jurisdiction based on
either “(1) the complaint alone; (2) the complaint supplemented by undisputed facts
evidenced in the record; or (3) the complaint supplemented by undisputed facts plus
the court’s resolution of disputed facts.” Williamson v. Tucker, 645 F.2d 404, 413
(5th Cir. 1981).5
The defendants contend that Voketz’s claims are moot because, in the decade
since the 2010 referendum, the Alabama legislature has twice amended the CMA.
Because the defendants rely on extrinsic evidence—exhibits attached to their motion
for summary judgment—to support their contentions, this case presents a factual
attack on subject matter jurisdiction. See Morrison, 323 F.3d at 925 n.5; Smith v.
Morgan, No. 5:18-CV-01111-AKK, 2019 WL 1930764, at *3 (N.D. Ala. May 1,
2019). Therefore, the court will consider both the complaint and the defendants’

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Decisions of the former Fifth Circuit announced before October 1, 1981 constitute binding
precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.
1981) (en banc).
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extrinsic evidence, which is undisputed, while analyzing mootness. See Williamson,
645 F.2d at 413.
B.
To review, a case is moot when the court can no longer provide the plaintiff
“meaningful relief,” causing the case to fall short of the Constitution’s case or
controversy requirement. Fla. Pub. Int. Rsch. Grp. Citizen Lobby, Inc. v. E.P.A., 386
F.3d 1070, 1086 (11th Cir. 2004). “Any decision on the merits of a moot case or
issue would be an impermissible advisory opinion.” Fla. Ass’n of Rehab. Facilities,
Inc. v. State of Fla. Dep’t of Health & Rehab. Servs., 225 F.3d 1208, 1217 (11th Cir.
2000)). Therefore, if events that occur after a lawsuit is filed “deprive the court of
the ability to give the plaintiff . . . meaningful relief, then the case is moot and must
be dismissed.” Id. Such mootness-triggering events include “[w]hen a subsequent
law brings the existing controversy to an end.” Coal. for the Abolition of Marijuana
Prohibition v. City of Atlanta, 219 F.3d 1301, 1310 (11th Cir. 2000). Put differently,
“federal courts lack jurisdiction to hear and decide cases where changes in the law
have rendered the case moot.” Nat’l Advert. Co. v. City of Miami, 402 F.3d 1329,
1332 (11th Cir. 2005) (per curiam).
The court must decide whether the CMA amendments preclude it from
granting meaningful relief in this case. Voketz seeks declaratory and injunctive relief

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to “redress the Defendants’ refusal to honor the results of [the 2010 referendum] or
to allow those results to be honored.” Doc. 31 at 1–2 ¶ 1. The defendants say the
2018 amendment mooted those claims by requiring municipalities approving a
council-manager government to adopt either four or six single-member voting
districts. Doc. 89 at 3. Allegedly, that requirement “prohibit[s] Decatur from
adopting the 3–2 format” of council-manager government required under the
unamended CMA. Id.
That change does not alone deprive the court of jurisdiction. The 2010
referendum did not by its terms mandate a city council with three members elected
from single-member districts and two elected at large. Rather, the referendum
provided only that the council-manager form of government would be adopted “as
provided by the [CMA].” See doc. 86 at 2 ¶ 4. As Voketz observed in his June 2018
letter to the defendants, doc. 88-2, the first CMA amendment therefore gave the
defendants more flexibility to implement the referendum. Under that amendment,
the defendants could adopt by resolution a council-manager government with up to
six single-member districts. Thus, had time stopped in 2018, then the court would
clearly be able to provide Voketz meaningful relief—an injunction ordering the
defendants to implement a council-manager government with either four or six
single-member districts. But time continued and so did the legislature.

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Although the ambiguity in the 2010 referendum’s ballot language was an asset
in 2018, it became a liability the next year. That ambiguity conflicts with the
provisions of the 2019 CMA amendment, which imposed a new ballot restriction on
the referendum process. The CMA now provides that “[t]he question on the ballot
shall indicate the composition of the mayor and council should the council-manager
form of government be adopted.” Ala. Code § 11-43A-1.1. As explained, the 2010
referendum did not comply with this provision because it did not indicate the
composition of Decatur’s proposed council-manager government. The defendants
thus contend that the court cannot “order Decatur to implement the results of a
referendum election that did not comply with current state law.” Id.
The court agrees. After Alabama’s 2019 CMA amendment, the court cannot
provide Voketz meaningful relief. That amendment mandates that Decatur residents
decide for themselves whether they will have either four or six councilmembers
elected from single-member districts. The legislature’s rapid intervention in 2019 to
reimpose the referendum requirement after the 2018 amendment jettisoned it,
presumably by accident, demonstrates that the CMA commits this question to the
voters. As does the statute’s text, which again commands that the question of council
composition “shall” be included on the ballot. Ala. Code § 11-43A-1.1; see also
Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998)
(noting that the “mandatory ‘shall[]’ . . . normally creates an obligation impervious
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to judicial discretion”). The court will not—indeed, cannot—order the defendants to
implement a council-manager government without voter input on this key issue.
Ruling otherwise would undermine both “the important limitations placed on the
power of the federal judiciary” and “long-established notions about the role of
unelected courts in our democratic system.” Nat’l Advert. Co., 402 F.3d at 1332.
Voketz briefly responds to the mootness argument in his renewed motion for
remand. He essentially contends that the 2018 and 2019 amendments did not alter
the CMA provisions that governed ballot language in council-manager referendums
when Decatur’s voters approved the switch in 2010. See doc. 86 at 2 ¶¶ 4–5. Under
the unamended CMA, the referendum ballot needed to ask only, “Shall the councilmanager form of government as provided by the Council-Manager Act of 1982 be
adopted for the municipality of [Decatur]?” Id.; Ala. Code § 11-43A-5. According
to Voketz, “[n]either the 2018 nor the 2019 amendments to the CMA changed the
language of this statute.” Doc. 86 at 2 ¶ 5. True, neither amendment explicitly
changed that statutory text, but the amended CMA dictates that its terms apply
“[n]otwithstanding any other provision” of the CMA. Ala. Code § 11-43A-1.1.
Voketz’s argument is therefore unavailing.

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IV.
To close, dismissal is warranted here because this case is moot in light of the
2019 amendments to the CMA. This result may appear unfair to Voketz and the
Decatur citizens who approved a council-manager government. From their
perspective, the defendants, though well-meaning, have essentially ignored the
results of an election. But federal courts “strictly observe the cases or controversy
limitation.” Nat’l Advert. Co., 402 F.3d at 1332. The Supreme Court has explained
that “a federal court has no authority ‘to give opinions upon moot questions or
abstract propositions, or to declare principles or rules of law which cannot affect the
matter in issue in the case before it.’” Church of Scientology of Cal. v. United States,
506 U.S. 9, 12 (1992) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)). Because
recent legal changes have rendered the court “incapable of granting [Voketz] any of
the relief requested” in his amended complaint, any judgment on the merits of this
matter would be an impermissible advisory opinion. Nat’l Advert. Co., 402 F.3d at
1335. This case is thus due to be dismissed as moot. The court will issue a separate
order in accordance with this Memorandum Opinion.
DONE the 15th day of September, 2020.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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