FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 DECEMBER 23, 2011

JOHN LEY

CLERK

 [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 11-11266

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D. C. Docket No. 5:11-cv-00761-CLS

ALABAMA EDUCATION ASSOCIATON,

an Alabama non-profit corporation,

A-VOTE,

an Alabama political committee,

PAM HILL,

JEFF BREECE,

CHASSITY SMITH, et al.,

Plaintiffs-Appellees,

versus

STATE SUPERINTENDENT OF EDUCATION, STATE OF ALABAMA,

CHANCELLOR OF POSTSECONDARY EDUCATION, STATE OF 

ALABAMA, ATTORNEY FOR LEE COUNTY, STATE OF ALABAMA,

Defendants-Appellants.

________________________

No. 11-11267

________________________

D.C. Docket No. 5:11-cv-00761-CLS
ALABAMA EDUCATION ASSOCIATION,

an Alabama non-profit corporation,

A-VOTE,

an Alabama political committee,

PAM HILL,

JEFF BREECE,

CHASSITY SMITH, et al.,

Plaintiffs-Appellees,

versus

GOVERNOR OF ALABAMA AND PRESIDENT OF THE STATE SCHOOL

BOARD, DIRECTOR OF FINANCE, STATE OF ALABAMA,

COMPTROLLER, STATE OF ALABAMA,

Defendants-Appellants.

________________________

No. 11-12609

________________________

D.C. Docket No. 5:11-cv-01054-CLS

INTERNATIONAL ASSOCIATION OF FIREFIGHTERS,

an unincorporated labor organization,

FIREPAC,

a political action committee,

AMERICAN FEDERATION OF TEACHERS LOCAL 2115, et al.,

Plaintiffs-Appellees,

versus

SUPERINTENDENT OF EDUCATION,

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in his capacity as the Superintendent of 

Education of the State of Alabama,

STATE OF ALABAMA, CHANCELLOR OF POSTSECONDARY

EDUCATION, in her capacity as Chancellor of Postsecondary Education

of the State of Alabama, et al.,

Defendants-Appellants.

________________________

Appeals from the United States District Court

for the Northern District of Alabama

________________________

(December 23, 2011)

Before DUBINA, Chief Judge, COX, Circuit Judge, and HUNT, District Judge. *

DUBINA, Chief Judge:

This appeal comes to us following the district court’s entry of a preliminary

injunction preventing enforcement of Alabama Act No. 2010-761 (the “Act”). 

This Act would prohibit a state or local government employee from arranging “by

payroll deduction or otherwise” the payment of any contribution to an

organization that uses any portion of those contributions for “political activity.” 

The district court found that the statute impinges on important free speech rights

protected by the First Amendment and that the Appellees—the Alabama Education

Honorable Willis B. Hunt, Jr., United States District Judge for the Northern District of *

Georgia, sitting by designation.

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Association (“AEA”) and other organizations—are likely to succeed in showing

the Act is both overbroad in its restrictions and unduly vague as to what

constitutes political activity. We conclude that the constitutional question before

us turns upon a question of state law. Rather than speculating as to the meaning of

a state statute, we believe it is more in keeping with the principles of federalism to

offer the Alabama Supreme Court an opportunity to explicate the Act. 

I.

Alabama Code §§ 36-1-4.3 and 36-1-4.4 authorize public employees to

request that the Alabama State Comptroller arrange for the payment of

membership dues for employee organizations by payroll deduction. There is

tension between this statute and Alabama Code § 17-17-5 which prohibits public

employees from using government resources for any “political activities.” An

employee found in violation of § 17-17-5 is subject to prosecution for the crime of

trading in public office, a Class A misdemeanor. In 2010, the Comptroller’s

Office reevaluated its interpretation of § 17-17-5 and changed its policy regarding

salary deductions, thereafter declining to honor requests for deductions that

benefited organizations involved in political activities, including AEA and its

PAC, A-VOTE. Lawsuits followed and are still pending in the state courts. 

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After this policy change, in December 2010, Governor Riley called a special

session of the legislature aimed at enacting ethics reform legislation. That special

session amended § 17-17-5 to codify the position of the Comptroller’s Office,

forbidding state and local government employees from arranging “by salary

deduction or otherwise for any payments to a political action committee or . . . for

any payments for the dues of any person so employed to a membership

organization which uses any portion of the dues for political activity.” Ala. Code

§ 17-17-5(b)(1). The legislation limits political activity to the following seven

categories: 

a. Making contributions to or contracting with any entity which

engages in any form of political communication, including

communications which mention the name of a political candidate.

b. Engaging in or paying for public opinion polling.

c. Engaging in or paying for any form of political communication,

including communications which mention the name of a political

candidate.

d. Engaging in or paying for any type of political advertising in any

medium.

e. Phone calling for any political purpose.

f. Distributing political literature of any type.

g. Providing any type of in-kind help or support to or for a political

candidate.

Id. The Act further requires that any organization seeking “to arrange by salary

deduction or otherwise . . . shall certify to the appropriate governmental entity that

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none of the membership dues will be used for political activity.” Ala. Code § 17-

17-5(b)(2).

AEA collects a large percentage of its dues through salary deduction. AEA

argues that these deductions are particularly important for its members who do not

have checking accounts. In February 2011, AEA filed a complaint claiming that

the Act unconstitutionally infringes on the First Amendment rights of AEA and its

members. Two weeks after filing its complaint, AEA moved for a preliminary

injunction barring enforcement of the Act on the grounds that it was likely to show

that the Act was both unconstitutionally vague and overbroad. The district court

agreed. In its opinion, the court reasoned that the “or otherwise” language of the

statute reached beyond salary deductions to the personal political contributions of

government employees. The district court also found that the term “political

activity” was unduly vague. 

II.

We review a district court’s grant of a preliminary injunction for an abuse of

discretion. N. Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1216

(11th Cir. 2008). The district court’s findings of fact are reviewed under a clearly

erroneous standard. Id. A finding of fact is clearly erroneous only when

“although there is evidence to support it, the reviewing court on the entire

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evidence is left with the definite and firm conviction that a mistake has been

committed.” Id. (internal quotation marks omitted). The district court’s

conclusions of law are reviewed de novo, “understanding that application of an

improper legal standard . . . is never within a district court’s discretion.” Id.

(internal quotation marks and brackets omitted). 

III.

A. Certification of Questions to the Alabama Supreme Court.

There is no question that a properly conceived ban on salary deductions to

organizations engaged in political activity would be constitutional. See Ysursa v.

Pocatello Educ. Ass’n, 555 U.S. 353, 355, 129 S. Ct. 1093, 1096 (2009)

(“[N]othing in the First Amendment prevents a State from determining that its

political subdivisions may not provide payroll deductions for political activities.”). 

In Ysursa, public employee unions challenged an Idaho state law ban on political

payroll deductions as a violation of the First Amendment. The Court began by

reiterating that the First Amendment “protects the right to be free from

government abridgment of speech. While in some contexts the government must

accommodate expression, it is not required to assist others in funding the

expression of particular ideas, including political ones.” Id. at 358, 129 S. Ct. at

1098; Regan v. Taxation with Representation of Wash., 461 U.S. 540, 549, 103 S.

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Ct. 1997, 2003 (1983) (“[A] legislature’s decision not to subsidize the exercise of

a fundamental right does not infringe the right, and thus is not subject to strict

scrutiny.”). The Court accepted that the unions challenging Idaho’s law faced

substantial difficulties in collecting funds for their political speech without the

assistance of the state through salary deductions. However, this fact posed no

difficulty for the Court, which concluded, 

While publicly administered payroll deductions for political purposes

can enhance the unions’ exercise of First Amendment rights, Idaho is

under no obligation to aid the unions in their political activities. And

the State’s decision not to do so is not an abridgment of the unions’

speech; they are free to engage in such speech as they see fit. They

simply are barred from enlisting the State in support of that endeavor.

Ysursa, 555 U.S. at 359, 129 S. Ct. at 1098. The Court then held, “Idaho’s

decision to limit public employer payroll deductions as it has is not subject to

strict scrutiny under the First Amendment.” Id. (internal citations and quotation

marks omitted). Instead, “[g]iven that the State has not infringed the unions’ First

Amendment rights, the State need only demonstrate a rational basis to justify the

ban on political payroll deductions.” Id. The Supreme Court concluded that the

payroll deduction ban met the rational basis test. It wrote, 

The concern that political payroll deductions might be seen as

involving public employers in politics arises only because Idaho

permits public employer payroll deductions in the first place. . . .

[T]he State’s response to that problem is limited to its source—in this

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case, political payroll deductions. The ban on such deductions plainly

serves the State’s interest in separating public employment from

political activities. 

Id. at 361, 129 S. Ct. at 1099. 

Thus, the question before this court in the present case turns entirely on how

the Act is interpreted. If it is meant only to reach payroll deductions for

organizations engaged in electioneering activities such as those targeted by the

Idaho statute at issue in Ysursa, then it presents no constitutional problems. A1

statute with a broader reach may implicate First Amendment concerns not

explored in Ysursa. It has long been our practice that “[s]ubstantial doubt about a

question of state law upon which a particular case turns should be resolved by

certifying the question to the state supreme court.” Jones v. Dillard’s, Inc., 331

F.3d 1259, 1268 (11th Cir. 2003) (citing Moreno v. Nationwide Insur. Co., 105

F.3d 1358, 1360 (11th Cir. 1997)). There is a high likelihood that the Supreme

Court of Alabama’s interpretation of the Act will resolve this matter; therefore, the

state courts should have the opportunity to address this issue in the first instance,

particularly since it is one so closely tied to statewide political reforms. We

The Idaho statute defines “political activity” as “electoral activities, independent 1

expenditures, or expenditures made to any candidate, political party, political action committee or

political issues committee or in support of or against any ballot measure.” 555 U.S. 353 at 356,

129 S. Ct. at 1096.

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conclude sufficient cause exists to certify a question to the Alabama Supreme

Court with respect to the scope of the Act.

CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT TO THE SUPREME COURT OF ALABAMA

PURSUANT TO RULE 18 OF THE ALABAMA RULES OF APPELLATE

PROCEDURE.

TO THE SUPREME COURT OF ALABAMA AND THE HONORABLE

JUSTICES THEREOF:

AEA contends that Alabama Act No. 2010-761 infringes a broader range of

constitutionally protected activity than previously recognized as permissible under

the First Amendment. Specifically, AEA argues that the Act’s “or otherwise”

language would prevent government employees from making contributions to an

organization engaged in political activity through any means, including personal

donations of their own money. AEA also argues that the term “political activity”

reaches a wide number of ill-defined activities, making it impossible for any

organization to certify that it is in compliance with the Act. The state counters

that “or otherwise” simply prevents the use of state resources in any

way—whether through salary deductions or some other state mechanism—from

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benefitting organizations involved in political activities. The state argues that

“political activity” means electioneering activities. 

The interpretation of the Act is a question of state law that has not been

specifically addressed by the Alabama Supreme Court or the intermediate state

appellate courts. Therefore, we certify the following questions to the Alabama

Supreme Court:

1. Is the “or otherwise” language in the statute limited to the use of state

mechanisms to support political organizations, or does it cover all

contributions by state employees to political organizations, regardless of the

source? 

2. Does the term “political activity” refer only to electioneering activities?

The answers to these questions will permit this court to address AEA’s

concerns and determine whether the Act runs afoul of the First Amendment. To

facilitate the resolution of these questions, we direct the Clerk to transmit the

entire record of this case, together with copies of the parties’ briefs, to the

Alabama Supreme Court. Of course, the Alabama Supreme Court is in no way

limited by our questions and may consider the case as it sees fit. 

B. Narrowing the District Court’s Injunction. 

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Although the ultimate resolution of this matter may depend on the Alabama

Supreme Court’s resolution of the certified questions, we believe it is appropriate

to narrow the district court’s injunction in the interim. In its memorandum

opinion, the district court issued a preliminary injunction barring the Act’s

enforcement in toto. However, a state’s restriction on payroll deductions for

organizations engaged in electioneering activities would likely be found

constitutional under Ysursa. To the extent the state limits its enforcement of the

Act in this way, it may proceed. The preliminary injunction remains in place as to

enforcement that extends beyond that range of conduct. 2

IV.

For the foregoing reasons, we delay final judgment as to the preliminary

injunction until the Alabama Supreme Court has had an opportunity to render its

interpretation of the Act. 

QUESTIONS CERTIFIED.

We also DISMISS the Governor of Alabama as a party to this appeal because the district 2

court’s injunction did not apply to him. 

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