Initial response to lawsuit filed against proposed Woodland Preparatory School (Washington County Students First) Motion to Dismiss. This is customary response to a law suit which will proceed forward http://www.woodlandprep.blogspot.com http://www.stopwoodlandprep.com

1. AlaFile E-Notice
To: LOPER THOMAS MATTHEW
tloper@loperlawllc.com
65-CV-2019-900064.00
Judge: GAINES C MCCORQUODALE
NOTICE OF ELECTRONIC FILING
IN THE CIRCUIT COURT OF WASHINGTON COUNTY, ALABAMA
The following matter was FILED on 9/3/2019 4:34:56 PM
KRISTA WILSON ET AL V. SONER TARIM ET AL
65-CV-2019-900064.00
MOTION TO DISMISS
Notice Date: 9/3/2019 4:34:56 PM
[Filer: VOSS MICKEY JANSEN]
VALERIE KNAPP
CIRCUIT COURT CLERK
WASHINGTON COUNTY, ALABAMA
PO BOX 548
CHATOM, AL, 36518
251-847-2239
valerie.knapp@alacourt.gov
45 COURT STREET
D003 WASHINGTON COUNTY STUDENTS FIRST
D004 BECTON THAD
D005 DUMAS TIFFANY
D006 BROWN PAUL (GENE)
D007 LEDDON LEO
D008 ALSTON NANCY
D009 ROSS JESSICA
D010 SNOW JACOB

2. Motion to Intervene ($297.00)
Oral Arguments Requested
Pendente Lite
CV201990006400
0
D003 - WASHINGTON COUNTY STUDENTS
FIRST
D004 - BECTON THAD
D005 - DUMAS TIFFANY
D006 - BROWN PAUL (GENE)
D007 - LEDDON LEO
D008 - ALSTON NANCY
D009 - ROSS JESSICA
D010 - SNOW JACOB
Local Court Costs $
*Motion fees are enumerated in §12-19-71(a). Fees
pursuant to Local Act are not included. Please contact the
Clerk of the Court regarding applicable local fees.
($50.00)pursuant to Rule
(Subject to Filing Fee)n/apursuant to Rule
Motion to DismissOther
Withdraw
Vacate or Modify
Supplement to Pending Motion
Strike
Stay
Special Practice in Alabama
Sever
Sanctions
Release from Stay of Execution
Quash
Protective Order
Preliminary Injunction
Plaintiff's Motion to Dismiss
Objection of Exemptions Claimed
New Trial
Motion to Dismiss pursuant to Rule 12(b)
More Definite Statement
Joinder
In Limine
Extension of Time
Disburse Funds
Judgment as a Matter of Law (during Trial)
Designate a Mediator
Deposition
Continue
Consolidation
Compel
Change of Venue/Transfer
Amend
Add Party
Other
Motion to Dismiss, or in the Alternative
SummaryJudgment($50.00)
Judgment on the Pleadings ($50.00)
Renewed Dispositive Motion(Summary
Judgment,Judgment on the Pleadings, or other
DispositiveMotion not pursuant to Rule 12(b)) ($50.00)
Summary Judgment pursuant to Rule 56($50.00)
Joinder in Other Party's Dispositive Motion
(i.e.Summary Judgment, Judgment on the Pleadings,
orother Dispositive Motion not pursuant to Rule 12(b))
($50.00)
Default Judgment ($50.00)
Motions Not Requiring FeeMotions Requiring Fee
TYPE OF MOTION
VOS001
BIRMINGHAM, AL 35203
505 North 20th Street; Suite 1800
M JANSEN VOSS
Attorney Bar No.:
Name, Address, and Telephone No. of Attorney or Party. If Not Represented.
Name of Filing Party:
CIVIL MOTION COVER SHEET
KRISTA WILSON ET AL V. SONER TARIM ET AL
Revised 3/5/08
Circuit CourtDistrict Court65-WASHINGTON
Unified Judicial System
STATE OF ALABAMA Case No.
ELECTRONICALLY FILED
9/3/2019 4:33 PM
65-CV-2019-900064.00
CIRCUIT COURT OF
WASHINGTON COUNTY, ALABAMA
VALERIE KNAPP, CLERK
DOCUMENT 35

3. 9/3/2019 4:32:59 PM
**Motions titled 'Motion to Dismiss' that are not pursuant to Rule 12(b) and are in fact Motions for Summary Judgments are subject to filing fee.
*This Cover Sheet must be completed and submitted to the Clerk of Court upon the filing of any motion. Each motion should contain a separate Cover Sheet.
Check here if you have filed or are filing contemoraneously
with this motion an Affidavit of Substantial Hardship or if you
are filing on behalf of an agency or department of the State,
county, or municipal government. (Pursuant to §6-5-1 Code
of Alabama (1975), governmental entities are exempt from
prepayment of filing fees)
Date: Signature of Attorney or Party
/s/ M JANSEN VOSS
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IN THE CIRCUIT COURT OF WASHINGTON COUNTY, ALABAMA
KRISTA WILSON, et al
Plaintiffs,
vs.
WASHINGTON COUNTY
STUDENTS FIRST, et al
Defendants.
Case No. CV 2019-900064
MOTION TO DISMISS
COMES NOW Defendant Washington County Students First, Thad Becton,
Tiffany Dumas, Paul (Gene) Brown, Leo Leddon, Nancy Alston, Jessica Ross, and Jacob
Snow and request that this Court dismiss the above-styled action with prejudice. In
support thereof, the Defendants state as follows:
INTRODUCTION
The Alabama Charter School Commission ("the Commission") authorized the
formation of Woodland Prepatory ("Woodland Prep"), a public charter school in
Washington County, Alabama. The Plaintiffs do not want a public charter school in
Washington County, and they filed the above-styled action in an attempt to stop the
opening of Woodland Prep. However, the Plaintiffs failed to follow the Alabama
ELECTRONICALLY FILED
9/3/2019 4:33 PM
65-CV-2019-900064.00
CIRCUIT COURT OF
WASHINGTON COUNTY, ALABAMA
VALERIE KNAPP, CLERK
DOCUMENT 36

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Administrative Procedures Act to seek review of the Alabama Charter School
Commission's authorization of Woodland Prep public charter school.
The Plaintiffs cannot show they have an “actual, concrete and particularized injury
in fact" to establish standing to file suit. This Court does not have subject matter jurisdiction
over the Plaintiffs' claims because the Plaintiffs failed to join the Alabama Charter School
Commission or the Alabama Department of Education as necessary defendants in this case
For all of the reasons presented below, the Plaintiffs' claims are due to be dismissed, with
prejudice.
FACTS
Background
The Alabama School Choice and Student Opportunity Act, Ala. Code (1975) §16-
6F-1, et seq., (hereinafter referred to as “the Charter School Law”) authorized the
establishment of public charter schools in Alabama and sets forth the requirements for their
creation. Doc. 2 ¶ 19.
Charter schools are part of the public education system in this State. Ala. Code §
16-6F-2. Public charter schools receive the same amount of state funds and local tax
revenue—per student—that a local school system would receive if that student attended
the local school system. Doc. 2 ¶ 20; Ala. Code § 16-6F-10(b)(1)(b) and (c).
A public charter school may be authorized by a local school board or the Alabama
Public Charter School Commission (hereinafter “the Commission”). Doc. 2 ¶ 23. If the
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authorizer approves a public charter school application, the authorizer and the applicant
must execute a charter contract clearly setting "forth the academic and operational
performance expectations and measures by which the public charter school will be judged
and the administrative relationship between the authorizer and the public charter school,
including each party’s rights and duties." Ala. Code § 16-6F-7(e)(1)
Woodland Prepatory
On March 13, 2018, incorporator Tiffany Dumas formed Washington County
Students First (hereinafter "Students First") as a nonprofit corporation with the goal of
establishing Woodland Prepatory public charter school in Washington County, Alabama.
Students First engaged Unity School Services LLC, an education service provider, to assist
with opening Woodland Prep. The Act permits Students First to engage an education
service provider, like Unity School Services. Ala. Code § 16-6F-9(b)(3); Doc. 2 ¶ 92.
Since the Washington County School Board is not an "authorizer", any public
charter school that wants to open within the Washington County School Board's
jurisdiction can only be authorized by the Commission. Doc. 2 ¶ 26. On March 16, 2018,
Students First submitted a charter school application to establish Woodland Prep. Doc. 2 ¶
55. On May 14, 2018, the Commission approved Woodland Prep for a planned August
2019 opening. Doc. 2 ¶ 63.
On June 7, 2019, the Commission approved Students First's request to delay opening
Woodland Prep until August 2020. Doc. 2 ¶ 65-70. Students First must meet certain
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enrollment benchmarks between now and August, 2020 or the Act will prohibit Woodland
Prep from opening. Doc. 2 ¶ 76. Students First has met all benchmarks to date, and fully
intends to meet all future benchmarks.
Plaintiffs' Claims
The Plaintiffs filed the above-styled action on August 2, 2019. The Complaint
contains four counts against the Defendants:
 Count I—Fraudulent Representation of a Non-profit Applicant.
o The Plaintiffs allege the Defendants made false representations that
Defendant Tarim is a mere consultant, when he is actually the alter ego of
Students First.
o The Plaintiffs request this Court find Students First's public charter school
application was fraudulently made and the charter contract is void.
 Count II—Fraudulent Representation of Local Community Interest and Support.
o The Plaintiffs allege the Defendants fraudulently misrepresented that there
was and is significant local community support for Woodland Prep.
o The Plaintiffs request this Court find Students First's public charter school
application was fraudulently made, and the charter contract void.
 Count III—Unlawful Solicitation of Out-of-state Students.1
1
The Defendants deny they are illegally soliciting students from other states. But, the Defendants agree they cannot
enroll students who reside in other states, and they have not done so.
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o The Plaintiffs argue the Defendants violated the Charter School Law by
actively recruiting Mississippi students to enroll in Woodland Prep.
o The Plaintiffs seek 1) a declaration that enrollment in Alabama public charter
schools is limited to residents of Alabama; 2) removal of any out-of-state
students listed as pre-enrolling in Woodland Prep; and 3) cessation of all
advertising and other efforts to solicit or accept students from outside the
State of Alabama.
 Count IV—Declaratory Judgment and Writ of Prohibition to Prevent Unlawful
Expenditure of Public Funds
o The Plaintiffs allege that since Woodland Prep is not in compliance with the
Act, it would be unlawful for the Defendants to receive public funds.
o The Plaintiffs argue that any contract providing public funds to Woodland
Prep is void.
o The Plaintiffs request the Court enter a judgment declaring that Woodland
Prep, having not been lawfully authorized as a public charter school, is not
entitled to the receipt of public funds.
In their Complaint, the Plaintiffs assert a number of allegations concerning
Defendant Tarim, which have no bearing on this case or this Motion, and they are irrelevant
to the Plaintiffs' claims. First, the Plaintiffs argue Defendant Tarim engaged in deceptive
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practices in the State of Texas. Doc. ¶¶27-57. Second, the Plaintiffs argue the National
Association of Charter School Authorizes found that Students First's proposal did not meet
the standard for approval. Doc. 2 ¶ 59. Third, the Plaintiffs argue that Defendant Tarim's
enrollment estimates for Woodland Prep are false. Doc. 2 ¶ 74. Fourth, the Plaintiffs argue
Defendant Tarim illegally advertised Woodland Prep to out-of-state parents and students
in Mississippi. Doc. 2 ¶ 78-79. Fifth, the Plaintiffs argue Woodland Prep is the alter ego of
Defendant Tarim. Doc. 2 ¶ 96. Sixth, the Plaintiffs argue there is public opposition to
Woodland Prep public charter school. Doc. 2 ¶ 115-123. These allegations have no bearing
on the Plaintiffs' claims nor this Motion. The Court should dismiss this case, even if the
Court considers these allegations as disputed facts because they are not material facts and
are irrelevant to the Plaintiffs' claims.
STANDARD OF REVIEW
In considering whether a complaint is sufficient to withstand a motion to dismiss
under Rule 12(b)(6), Ala. R. Civ. P., a court “must accept the allegations of the complaint
as true.” Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala.
2002) (emphasis omitted). “ ‘The appropriate standard of review under Rule 12(b)(6)[, Ala.
R. Civ. P.,] is whether, when the allegations of the complaint are viewed most strongly in
the pleader's favor, it appears that the pleader could prove any set of circumstances that
would entitle [it] to relief.’ ” Smith v. National Sec. Ins. Co., 860 So.2d 343, 345 (Ala.2003)
(quoting Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993)). In determining whether this
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is true, a court considers only whether the plaintiff may possibly prevail, not whether the
plaintiff will ultimately prevail. Id. Put another way, “ ‘a Rule 12(b)(6) dismissal is proper
only when it appears beyond doubt that the plaintiff can prove no set of facts in support of
the claim that would entitle the plaintiff to relief.’ ” Id. (emphasis added).
GROUNDS IN SUPPORT OF MOTION TO DISMISS
I. The Alabama Administrative Procedures Act Bars the Plaintiffs' Claims.
a. The AAPA applies to the review of Commission decisions.
The AAPA applies to Commission decisions approving or denying public charter
school applications such as Students First. The Alabama Administrative Procedures Act
provides a minimum procedural code for the operation of state agencies when an agency
takes actions that affects the public. Ala. Code § 41-22-2.
The Alabama Court of Civil Appeals applied the Administrative Procedures Act to
the Charter Schools Act. Alabama Pub. Charter Sch. Comm'n, No. 2170150, ___ So.3d
___, 2018 WL 301330 at *1 (Ala. Civ. App. Jan. 5, 2018). In Alabama Pub. Charter Sch.
Comm'n, the Birmingham City School Board, a qualified “authorizer” under the Charter
Schools Act, denied the application of a public charter school, STAR Academy. 2018 WL
301330 at *1. Under Alabama Code § 16-6F-6(a) (4) and (c) (12), Star Academy appealed
to the Commission. The Commission reversed the board's decision and granted the
application. Id. The Board thereafter sought judicial review in the Circuit Court of Jefferson
County. Id.
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The Alabama Court of Civil Appeals held that the circuit court was without subject
matter jurisdiction to consider the board's claims and the Administrative Procedures Act
governed actions contesting a final decision of the Commission to grant the application of
a public charter school:
“the [Charter Schools Act] does not expressly provide for judicial review of
decisions of the Commission authorizing the establishment of a public
charter school notwithstanding the prior denial of authority on the part of a
local school board. However, the [Administrative Procedures Act] sets forth
‘a minimum procedural code for the operation of all state agencies when they
take action affecting the rights and duties of the public,’ Ala. Code 1975, §
41-22-2 (a). Under the [Administrative Procedures Act, administrative
proceedings pertinent to ‘the grant...of’ a ‘license’ - which term encompasses
‘any agency franchise, permit, certificate, approval, registration, charter, or
similar form of permission required by law,’ Ala. Code 1975, § 1-22-3(4) -
are governed by the provisions of the AAPA governing ‘contested cases.’
See Ala. Code 1975, § 41-22-19(a).
Alabama Pub. Charter Sch. Comm'n, 2018 WL 301330 at *1.
The Alabama Public Charter School Commission is an independent state entity. Ala.
Code § 16-6F-6(c)(1). The approval or denial of a charter school application is defined as
an “action” of the Commission. See Ala. Code 1975, §§ 16-6F-7(b)(4) and (7) (describing
the approval or denial of a charter application as an “action” of an “authorizer”), and Ala.
Code 1975, § 16-6F-6(a)(1)(b). (defining the Commission as an “authorizer”). Therefore,
following Alabama Pub. Charter Sch. Comm'n, the Administrative Procedures Act governs
the Plaintiffs' claims in this case.
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b. As nonparties, the Plaintiffs should have intervened seeking a review of
the Commission's decision granting Students First's application for a
public charter school.
Under Alabama Code § 41-22-20 (a), “[a] person,” as opposed to a party, “who has
exhausted all administrative remedies available within an agency, other than rehearing, and
who is aggrieved by a final decision in a contested case is entitled to judicial review under
this chapter.”
The Commission’s decision approving Students First's application for Woodland
Prep occurred on May 14, 2018. The Plaintiffs' attempt to challenge that approval requires
they satisfy the Administrative Procedures Act's procedural requirements. However, the
Plaintiffs did not exhaust their administrative remedies and did not satisfy the prerequisites
of the Administrative Procedures Act and instead filed this meritless lawsuit on August 2,
2019. Strick compliance with the Administrative Procedures Act is a jurisdictional
requirement:
“ ‘Appeals from decisions of administrative agencies are statutory, and the
time periods provided for the filing of notice of appeals and petitions must
be strictly observed,’ on pain of dismissal. Eitzen v. Medical Licensure
Comm'n of Alabama, 709 So.2d 1239, 1240 (Ala.Civ.App.1998). Further,
any failure to act within the periods prescribed by the [Administrative
Procedures Act] will be noted by this court ex mero motu, and the appeal
dismissed, notwithstanding any failure by the parties to raise the
jurisdictional defect in their briefs. See Lawrence v. Alabama State Pers. Bd.,
910 So.2d 126, 128 (Ala. Civ. App. 2004).
Brunson v. Alabama State Bd. of Med. Examiners, 69 So. 3d 913, 914-15
(Ala. Civ. App. 2011).
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While it is true that only a “party” may properly pursue judicial review under the
Administrative Procedures Act to become a “party” in a contested case where a license,
application or approval is granted, an “aggrieved person” who is not a party, must first
apply to intervene in the administrative proceedings in order to obtain review in the circuit
court. See Phoenix Ass'n, Inc. v. Cudzik, 641 So. 2d 828, 829-30 (Ala. Civ. App. 1994).
The Plaintiffs never applied to intervene and were never “parties” to the Commission's
proceedings.
The Administrative Procedures Act provides that “[p]ersons,” as opposed to parties,
“who are ‘aggrieved by a final decision in a contested case' are entitled to judicial review
under the auspices of the Administrative Procedures Act.” Alabama Pub. Charter Sch.
Comm'n (quoting Ala. Code 1975, § 41-22-20(a)) (Emphasis added). Under § 41-22-20(d),
“[a]ny person aggrieved who is not a party [to the administrative proceedings] may petition
to become a party [to the administrative proceeding] by filing a motion to intervene as
provided in Section 41-22-14.”
In Phoenix Ass'n, a “protest group” appeared before the Alcoholic Beverage Control
Board seeking nonrenewal of a club liquor license, but the group failed to intervene in the
administrative proceedings and made no showing that its “interests in the outcome of the
case were distinguishable from a public interest and that its interests would have been
inadequately represented without its intervening in the action” as required by § 41-22-14.
641 So.2d at 830. The Phoenix Ass'n court therefore found that “Phoenix was not a party
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to the Board's hearing” to consider the club liquor license renewal, and as such, it “would
not have been entitled to appeal the renewal of Cudzik's club liquor license had the Board
voted to renew it.” Id. Although the Phoenix Ass'n court acknowledged that § 41-22-20(d)
provides the avenue for an aggrieved nonparty to seek intervention at the circuit court level,
it nevertheless held that the group “was not ‘aggrieved’ by the Board's decision,” because
the Board had rejected Cudzik's application for renewal.
Here, the Plaintiffs failed to seek intervention in the Commission's proceedings as
required under the Administrative Procedures Act and they have no standing to seek review
of that decision in this Court. Furthermore, this Court does not have subject matter
jurisdiction over the Plaintiffs' untimely claims. Because the approval of Students First's
application could only be reviewed, if at all, as a “contested case,” under § 41-22-19(a),
the Plaintiffs should have intervened to seek review of the decision. Once the application
was approved, there was no “party” left to appeal the decision of the Commission, and
there was no other means by which the Plaintiffs could have obtained review. The
Plaintiffs' failure to apply to the Commission for leave to intervene under § 41-22-14
precludes judicial review or relief in the above-styled action.
c. The Plaintiffs failed to follow the notice requirements of § 41-22-20(d) in
seeking judicial review.
Assuming Plaintiffs could somehow be considered a “party” such that they could
seek review of the Commission's decision without ever having intervened, which the
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Defendants deny, they nevertheless failed to adhere to the time and notice requirements of
§ 41-22-20(d). That subsection provides:
“The notice of appeal or review shall be filed within 30 days after the receipt
of the notice of or other service of the final decision of the agency upon the
petitioner.... The petition for judicial review in the circuit court shall be filed
within 30 days after the filing of the notice of appeal or review.”
Except in extraordinary cases, “[f]ailure to file such petition within the time stated shall
operate as a waiver of the right of such person to review under this chapter.” Id.
Furthermore, “[t]his section shall apply to judicial review from the final order or action of
all agencies, and amends the judicial review statutes relating to all agencies to provide a
period of 30 days within which to appeal or to institute judicial review.” Id.
As the Alabama Pub. Charter Sch. Comm'n court observed, “a party obtains judicial
review in a circuit court of a final decision of a state agency, such as the Commission,
reached in a contested case by both initially filing a notice of appeal within 30 days after
the final decision of the agency, and by filing within 30 days after the filing of the notice
of appeal (or any additional time afforded by the pertinent circuit court), a petition for
judicial review of that decision.” 2018 WL 301330 at *3 (emphasis in original).
The Commission approved Students First's public charter school application on
March 14, 2018 for an August 2018 opening. The Commission later approved Students
First's request to delay opening Woodland Prep to August, 2020. The Plaintiffs filed the
above-styled lawsuit on August 2, 2019—seventeen months after the Commission
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approved Woodland Prep, and almost sixty days after the Commission's decision to delay
opening to August, 2020.
As noted above, the Plaintiffs failed to 1) file an application to intervene in the
Commission's proceedings, 2) seek a rehearing or reconsideration and 3) failed to give
timely notice of intent to seek judicial review of the Commission's decision. As in Alabama
Pub. Charter Sch. Comm'n, the time has now passed during which Plaintiffs could have
provided the required notice. The Plaintiffs' failures constitute jurisdictional defects and
are fatal to their claims in the above-styled action and all the Plaintiffs' claims should be
dismissed as a matter of law.
d. Plaintiffs Lack Standing.
Under Alabama law, “[n]ot all controversies … are justiciable. Justiciability is a
compound concept, composed of a number of distinct elements. Chief among these
elements is the requirement that a plaintiff have ‘standing to invoke the power of the court
in his behalf.’” Ex parte State ex rel. James, 711 So. 2d 952, 960 (Ala. 1998) (quoting Ex
parte Izundu, 568 So. 2d 771, 772 (Ala. 1990)). “To say that a person has standing is to
say that that person is the proper party to bring the action. To be a proper party, the person
must have a real, tangible legal interest in the subject matter of the lawsuit.” Doremus v.
Business Council of Alabama Workers’ Comp. Self-Insurers Fund, 686 So. 2d 252, 253
(Ala. 1996).
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Standing turns on “whether the party has been injured in fact and whether the injury
is to a legally protected right.” State v. 2018 Rainbow Drive, 740 So. 2d 1025, 1027 (Ala.
1999). “In the absence of such an injury, there is no case or controversy for a court to
consider. Therefore, were a court to make a binding judgment on an underlying issue in
spite of absence of injury, it would be exceeding the scope of its authority and intruding
into the province of the Legislature.” Town of Cedar Bluff v. Citizens for Caring for
Children, 904 So. 2d 1253, 1256 (Ala. 2004).
A party establishes standing to bring an action “‘when it demonstrates the existence
of (1) an actual, concrete and particularized injury in fact – an invasion of a legally
protected interest; (2) a causal connection between the injury and the conduct complained
of; and (3) a likelihood that the injury will be ‘redressed by a favorable decision.’” Town
of Cedar Bluff, 904 So. 2d at 1256 (quoting Alabama Alcohol Beverage Control Board v.
Henri-Duval Winery, LLC, 890 So. 2d 70, 74 (Ala. 2003).
The Plaintiffs' Complaint states:
3. Krista Wilson (hereinafter referred to as “Wilson”), a taxpaying adult
resident of Washington County, Alabama and an employee of the WCBOE
brings this action individually. Wilson also brings this action as the President
of Plaintiff Washington County Education Association.
4. Betty Brackin (hereinafter referred to as “Brackin”), an adult taxpaying
resident of Washington County, Alabama and an employee of the
Washington County Board of Education (“WCBOE”) brings this action
individually.
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5. Summer Beech (hereinafter referred to as “Beech”), an adult taxpaying
resident of Washington County, Alabama and an employee of the WCBOE
brings this action individually.
6. The Washington County Education Association (WCEA) is an
unincorporated nonprofit association comprised of teachers, education
support professionals, school administrators and other school employees,
many of whom are likely to be subject to adverse employment action, up to
and including termination, if Woodland Prep is allowed to proceed, due to a
loss of enrollment in schools operated by the WCBOE. All WCEA members
have an interest in the lawful expenditure of public tax funds.
The Plaintiffs cannot establish that they have an “actual, concrete and particularized
injury in fact." The Plaintiffs do not establish how the opening of Woodland Prep could
"harm the public by draining funds from the State of Alabama and the Washington County
public schools". Doc. 2 ¶ 130. The Plaintiffs have not shown, and cannot show, that this
statement is anything more than speculation. It is well stablished that standing cannot be
based on speculation or conjecture. See, e.g., Ex parte Richardson, 957 So. 2d 1119, 1126
(Ala. 2006). For these reasons, the Plaintiffs cannot meet the traditional elements of
standing – they do not have an “actual, concrete and particularized injury in fact”; they
cannot show “a causal connection between the injury and the conduct complained of”; and
they cannot show a “likelihood that the injury will be redressed by a favorable decision.”
While a taxpayer might have standing to challenge an expenditure that will impose
a tax burden on the taxpayers of the State, i.e., imposing a “liability [on taxpayers] to
replenish the public funds,” a taxpayer may not challenge how an existing pool of resources
is allocated among the public schools in this State, particularly where there is no allegation
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or evidence that taxpayers will incur a liability to replenish any such funds. Riley v. Pate,
3 So. 3d 835, 838 (Ala. 2008) (quoting Jordan v. Siegleman, 949 So. 2d 887, 891 (Ala.
2006)); see also Ex parte State ex rel. Ala. Policy Inst., 200 So. 3d 495, 517 (Ala. 2015)
(“[I]t is generally insufficient that a plaintiff merely has a general interest common to all
members of the public.”) (quoting State ex rel. Cittadine v. Indiana Dep’t of Transp., 790
N.E.2d 978, 983 (Ind. 2003)).
The Plaintiffs are also unable to establish with any degree of certainty that the
opening of Woodland Prep will have any effect on the enrollment in schools operated by
the local school board and, even if enrollment is affected, Plaintiffs cannot plausibly allege
(nor have they attempted to allege) that this would necessarily result in any teacher,
education support professional, or school administrator losing his or her job, much less that
the Plaintiffs would suffer those consequences.
Woodland Prep is a start-up public charter school, meaning that Woodland Prep will
be an entirely new public school and not the conversion of an existing traditional public
school into a public charter school. This means the opening of Woodland Prep will not
require that any local school board teaching or administrative position be abolished. On the
contrary, Woodland Prep will actually lead to the creation of a number of public school
teaching and administration positions in Washington County that did not exist before
Woodland Prep is opened.
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The opening of Woodland Prep may actually increase public school funding in
Washington County due to increase enrollment in public schools. Per student, public
charter schools receive the same amount of state funds and local tax revenue that a local
school system receives. Doc. 2 ¶ 20. It is anticipated that opening Woodland Prep will
actually attract students who are currently attending private schools back to the public
school sector, which would mean an increase in public school funding in Washington
County over time. Since public schools are funded at a rate based on the previous year,
there is no chance Woodland Prep would affect funding for the local school board in 2020.
The Plaintiffs argue that public charter schools have no accountability to taxpayers
or elected officials. Doc. 2 ¶ 22. The Plaintiffs allege that citizens of Washington County
do not want Woodland Prep or any charter schools in the community. Doc. 2 ¶ 43-44, 115,
122. The Complaint also argues the Plaintiffs "are likely to be subject to adverse
employment action, up to and including termination, if Woodland Prep is allowed to
proceed, due to a loss of enrollment in schools operated" by the local board of education.
Doc. 2 ¶ 6.
However, these complaints are not issues for which a taxpayer may have standing
to challenge state action, as these issues have nothing to do with a taxpayer being required
to “replenish the public funds.” Rather, the Plaintiffs simply think the creation of public
charter schools is a bad idea. That is an issue to take up with the Legislature, as this Court
may adjudicate a case only when a party “has been injured in fact and [where that] the
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injury is to a legally protected right.” 2018 Rainbow Drive, 740 So.2d at 1027 (quoting
Romer v. Board of County Comm'rs of the County of Pueblo, 956 P.2d 566, 581 (Colo.
1998) (Kourlis, J., dissenting)) (emphasis omitted). “In the absence of such an injury, there
is no case or controversy for a court to consider. Therefore, were a court to make a binding
judgment on an underlying issue in spite of absence of injury, it would be exceeding the
scope of its authority and intruding into the province of the Legislature.” See Town of
Cedar Bluff, 904 So. 2d at 1256 (citing City of Daphne v. City of Spanish Fort, 853 So.2d
933, 942 (Ala.2003); Ex parte Jenkins, 723 So.2d 649, 656 (Ala.1998))); Allen v. Wright,
468 U.S. 737, 752, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (“[T]he law of Art. III standing
is built on a single basic idea—the idea of separation of powers.”).
Therefore, the Plaintiffs lack standing to maintain this action.
II. The Plaintiffs' requests for equitable relief are due to be dismissed because the
Plaintiffs failed to join an indispensable party; or in the alternative, the
indispensable party should be joined, and the case transferred to Montgomery
County Circuit Court.
Alabama's Declaratory Judgment Act, Alabama Code § 6–6–220 et seq. authorizes
the courts of this state to “declare rights, status, and other legal relations whether or not
further relief is or could be claimed.” However, the Act does not permit courts to decide
moot questions, abstract propositions, or provide advisory opinions. Town of Warrior v.
Blaylock, 152 So.2d 661, 662 (Ala. 1963) Non-justiciable advisory opinions include
actions where “there is an insufficient interest in the plaintiff or defendant to justify judicial
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determination, where the judgment sought would not constitute specific relief to a litigant
... or where, by reason of inadequacy of parties defendant, the judgment could not be
sufficiently conclusive.” E. Borchard, Declaratory Judgments 31 (1934) (emphasis added).
In Stamps v. Jefferson County Board of Education, the Alabama Supreme Court
discussed the applicability of the Declaratory Judgment Act in a situation similar to the one
presently before this court. 642 So.2d 941 (Ala.1994). A group of special-education
teachers alleged they were regularly required, as part of their jobs, to perform procedures
that the Nursing Practices Act, §§ 34–21–1 to –63, Ala. Code 1975 (“the NPA”), restricts
to licensed nurses. The teachers filed an action against the Jefferson County Board of
Education (“the Board”), seeking a judgment declaring that performing that work
constituted the unauthorized practice of nursing in violation of the NPA and subjected them
to potential criminal liability. The trial court entered a judgment in favor of the Board,
holding that the work of which the employees complained did not violate the NPA.
The Alabama Supreme Court held that the employees' action presented a
controversy that was not justiciable because the employees did not join the board of nursing
to their action. Id. In a declaratory judgment action, all persons who have an interest in the
claim must be made parties; the interests of those who are not parties is not affected. Ala.
Code § 6-6-227. The Court observed:
“Conspicuously absent from this case of first impression is the board of
nursing, the only entity expressly charged with enforcing the NPA and the
one from which a prosecution—entirely hypothetical at this point—would
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originate. Pursuant to § 6–6–227, that entity would not be bound by a court's
construction in this action of the NPA's relevant provisions. A ‘judgment’ in
this case would, therefore, represent a mere advisory opinion, one that the
board of nursing could ignore if it actually began a prosecution based on
these identical facts. In other words, if a court were to conclude that the
contested duties did not offend the NPA, the board of nursing, not being
bound by that construction of the NPA, could still prosecute the plaintiffs for
the unlicensed practice of nursing. The circuit court's declaratory ‘judgment’
entirely fails to ‘terminate the uncertainty’ the plaintiffs seek to resolve, § 6–
6–229, and it is quite likely that a court will be required someday to consider
the same issues in another action. Indeed, this case exemplifies the
interaction of § 6–6–227 and § 6–6–229, the purpose of § 6–6–229, and the
rationale of the rule precluding courts from giving advisory opinions.”
Stamps, 642 So.2d at 944–45 [emphasis added]
In B.W.T. v. Haynes & Haynes, P.C., a law firm sought a declaration that fees
it charged a client were not in violation of Rule 1.5 of the Alabama Rules of
Professional Conduct. 20 So. 3d 815 (Ala. Civ. App. 2009) The law firm named
only its client as a defendant in the declaratory judgment action. The Court stated:
The State Bar was not made a party to this action. As a result, the trial court's
determination as to whether the fee agreement violates Rule 1.5 is not
binding on the State Bar. Thus, the State Bar, which is charged with
enforcing Rule 1.5, is free to interpret and enforce Rule 1.5 with regard to
the fee agreement at issue in this case without regard to the trial court's
judgment, and without regard to any disposition by this court of the appeal
from that judgment. The trial court's judgment, and any disposition by this
court that affirms or reverses that judgment, is, as a result, merely advisory.
Because this case presents a dispute that is not justiciable and for which any
judgment constitutes merely an advisory opinion, the trial court never
obtained subject-matter jurisdiction over the action; its judgment is therefore
void. See Stamps, 642 So.2d at 945. Because a void judgment will not
support an appeal, we are left with no choice but to dismiss the appeal and to
instruct the trial court to dismiss the action. Id. at 821-822.
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The Plaintiffs argue the Commission would not have approved Students First's
public school charter if the Commission had known alleged actions by the Defendants. The
Plaintiffs ask this Court to declare Students First's public charter school contract with the
Commission void. The Commission is charged by the legislature to authorize public charter
school pursuant to the Act, and is a party to the public charter school contract the Plaintiffs
are seeking to void. Yet, the Commission is conspicuously absent from this case.
Additionally, the Plaintiffs ask this Court to prohibit the expenditure of public funds
on Students First or Woodland Prep. Yet, the Alabama Department of Education—the state
agency through which Students First and Woodland Prep would be funded—is
conspicuously absent from this case. Following Stamps and Haynes & Haynes, P.C., the
Court should dismiss the above-styled action with prejudice, because any declaration
entered by this Court is merely an advisory opinion constituting a non-justiciable
controversy.
CONCLUSION
The Plaintiffs failed to follow the Alabama Administrative Procedures Act to seek
review of the Commission's authorization of Woodland Prep. Strick compliance with the
Administrative Procedures Act is a jurisdictional requirement. The Plaintiffs, as non-
parties to the Commission's proceedings, should have, but did not, intervene in the
proceedings. Further, even if the Plaintiffs were somehow considered parties under the
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Alabama Administrative Procedures Act, which the Defendants deny, the Plaintiffs failed
to timely seek judicial review under the AAPA.
The Plaintiffs also cannot meet the traditional elements of standing – they do not
have an “actual, concrete and particularized injury in fact”; they cannot show “a causal
connection between the injury and the conduct complained of”; and they cannot show a
“likelihood that the injury will be redressed by a favorable decision.” Without the Alabama
Charter School Commission or the Alabama Department of Education as defendants, the
Plaintiffs claims constitute a non-justiciable controversy, and fail to establish the subject
matter jurisdiction of this Court.
WHEREFORE PREMISES CONSIDERED, the Defendants request this Court
enter an Order dismissing the above-styled action, with prejudice. In the alternative, the
Defendants request this Court enter an Order joining the Alabama Charter School
Commission and the Alabama Department of Education as Defendants in this case.
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Respectfully submitted,
September 3, 2019
s/ M. Jansen Voss
David L. Faulkner, Jr.
Michael A. Vercher
M. Jansen Voss
Attorneys for Washington County
Students First, Thad Becton, Tiffany
Dumas, Paul (Gene) Brown, Leo Leddon,
Nancy Alston, Jessica Ross, and Jacob
Snow
OF COUNSEL:
CHRISTIAN & SMALL LLP
505 North 20th Street, Suite 1800
Birmingham, Alabama 35203
T (205) 795-6588 F (205) 328-7234
dlfaulkner@csattorneys.com
mavercher@csattorneys.com
mjvoss@csattorneys.com
CERTIFICATE OF SERVICE
I certify on September 3, 2019, I served a copy of this document and any
attachments on counsel for all parties via electronic filing or by placing same in the
United States Mail, properly addressed and first-class postage prepaid to:
Thomas M. Loper
LOPER LAW, LLC
452 Government Street, Suite E
Mobile, Alabama 36602-2320
tloper@loperlawllc.com
Clinton M. Daughtrey
Victoria D. Relf
ALABAMA EDUCATION ASSOCIATION
Post Office Box 4177
Montgomery, Alabama 36103-4177
clintd@alaedu.org
Victoria.Relf@alaedu.org
Soner Tarim
503 Odgen Trail
Sugar Land, Texas 77479
Unity School Services
c/o Registered Agent
212 W. Troy Street, Suite B
Dothan, Alabama 36303
/s/ M. Jansen Voss
OF COUNSEL
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