UPDATE: Wednesday morning, Assistants for Alabama Attorney General Luther Strange filed a motion in Montgomery Circuit Court on behalf of Lt. Governor Kay Ivey to dismiss a lawsuit that led to the injunction of the Alabama Accountability Act. Ivey is a defendant in a lawsuit filed by the Alabama Education Association on behalf of Lynn Pettway.
The motion seeks dismissal of the case based on several points. Among them, the Assistant Attorneys General argue the court lacks jurisdiction over the subject matter in the complaint, the complaint fails to state a claim for relief under the Alabama Open Meetings Act, and failure to follow a legislative rule that is not constitutionally mandated does not invalidate a legislative act.
Judge Charles Price could rule Wednesday on whether to make his injunction of the Alabama Accountability Act permanent, a newly passed school voucher bill. The initial hearing was scheduled for 8:30 a.m. but the judge asked all parties to return at 1:30 p.m.
The questions legal analysts are considering is should the bill be blocked from being signed into law, is there enough legal merit to allow that, and will it ultimately even matter?
One north Alabama lawyer says Wednesday's expected ruling is comparable to a warmup, with the real legal battle still to come. Huntsville attorney Mark McDaniel told WHNT News 19 that no matter what happens, the Alabama Accountability Act will still be likely signed into law. McDaniel said supporters of the school voucher bill have more than enough votes to pass the legislation in a redo if Judge Charles Price ultimately sides with the bill's opponents, who claim that the bill's sponsors violated the Alabama Open Meetings Act by meeting in private. McDaniel believes the real legal battle likely awaits in federal court, which would examine if the equal protection clause was violated.
"Generally, the way these laws are contested is after the law is passed," said McDaniel. "This law will be passed, and it will be law in the state of Alabama... Ultimately, the Alabama Supreme Court, if they say there was a violation of the Open Meetings Act, setting the law aside and saying the Governor could not in fact sign it into law, then the legislature can meet again. They can pass the law with no violation of the Open Meetings Act. They will pass it, but this law will [then] be contested in federal court."
McDaniel said a federal challenge is the only tangible hope for school voucher opponents, which would likely be based on claims that the proposed law violates the Equal Protection Clause.
"You're gonna have an argument that says 'We're never going to have anybody in the poor school districts if they [students and parents] use the tax credits," said McDaniel. "They [voucher opponents] say everybody will go to the private schools or public schools with better ratings...The other side will say 'We passed the law, and we're not discriminating against anyone in those poor districts. Anyone who wants to go into a private school or a better public school can get this tax credit, so we're not discriminating against anyone here."
Attorneys for Gov. Robert Bentley (R) have asked Judge Price to throw out the lawsuit filed by the Alabama Education Association since the named plaintiff was not at the legislature to witness what happened. The Alabama Supreme Court would be the next stop on the legal trail if Judge Price decides to make the injunction permanent.