Grimsley v Bentley

7/25/2019 Grimsley v Bentley

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AlaFileE-Notice

To: DILLARDJOELEVAN

[email protected]

03-CV-2016-900483.00

NOTICEOFELECTRONICFILING

INTHECIRCUITCOURTOFMONTGOMERYCOUNTY,ALABAMA

ThefollowingcomplaintwasFILEDon4/11/20169:38:27AM

CHARLESGRIMSLEYV.ROBERTBENTLEYETAL

03-CV-2016-900483.00

NoticeDate: 4/11/20169:38:27AM

TIFFANYB.MCCORD

CIRCUITCOURTCLERK

MONTGOMERYCOUNTY,ALABAMA

MONTGOMERY,AL36104

334-832-1260

251S.LAWRENCESTREET


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IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, ALABAMA

CHARLES GRIMSLEY, ) )

Plaintiff, )

)v. )CASE NO. CV-2016-900483.00

)GOVERNOR ROBERT BENTLEY, )individually and in his )official capacity as an )officer of the State of )Alabama; COMMISSIONER )GUNTER GUY, individually )and in his official )

capacity as an officer )of the State of Alabama, )LUTHER STRANGE, individ- )ually and in his official )capacity as an officer )of the State of Alabama; )WILLIAM NEWTON, individ- )ually and in his official )capacity as State Finance )Director and R. COOPER SHATTUCK )

individually and as Executive )Director of the University of )Alabama Systems Gulf State )Park Project and an officer )of the State of Alabama, )

)Defendants. )

____________________________________________________________

FIRST AMENDED COMPLAINT FOR DECLARATORY JUDGMENT,TO CHALLENGE AND RESTRAIN STATE OFFICERS ENGAGED

IN THE UNLAWFUL DISBURSEMENT OF STATE FUNDS,AND FOR A WRIT OF QUO WARRANTO

____________________________________________________________

Comes Plaintiff, pursuant to his right as a taxpayer to

challenge, by way of a declaratory judgment, the unlawful

ELECTRONICALLY FILED4/11/2016 9:38 AM

03-CV-2016-900483.00CIRCUIT COURT OF

MONTGOMERY COUNTY, ALABATIFFANY B. MCCORD, CLERK

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disbursement of state funds by state officers, to obtain

an order restraining the state officers named herein from

further unlawfully disbursing state funds, an order for an

accounting of all unlawfully disbursed state funds and an

order requiring restitution of such unlawfully disbursed

state funds.

PARTIES

1. Plaintiff is a former Commissioner of the State

Department of Conservation and Natural Resources, a resident

Alabama citizen and taxpayer, and a private citizen with

standing to challenge the unlawful disbursements of state

funds complained of herein, and to proceed on behalf of the

State of Alabama by the quo warranto provisions cited in the

body of this complaint. His standing to maintain this

civil action suit to restrain unlawful disbursements of

specific state funds and to bring this quo warranto action

is accurately described and stated herein.

2. Defendant Robert Bentley is the Governor of the

State of Alabama, and an officer of the State of Alabama

acting in concert with the remaining named defendants to

unlawfully disburse and expend the state funds identified

herein and to daily participate in the usurpations and

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intrusion on the state office of General Counsel to The

University of Alabama System described herein.

3. Defendant Luther Strange is the Attorney General

of Alabama, and is an officer of the State of Alabama acting

in concert with the remaining named defendants herein to

allow them to unlawfully disburse the state funds identified

herein and accomplish the usurpations and intrusions upon

the state office of General Counsel of The University of

Alabama System described herein.

4. Defendant Gunter Guy is the State Commissioner of

Conservation and Natural Resources and is an officer of the

State of Alabama acting in concert with the remaining named

defendants herein to unlawfully disburse the state funds

identified herein and accomplish the usurpations and

intrusions upon the state office of General Counsel of The

University of Alabama System described herein.

5. Defendant William Newton is the State Finance

Director and is an officer of the State of Alabama acting in

concert with the remaining named defendants herein to allow

them to unlawfully disburse the state funds identified

herein and accomplish the usurpations and intrusions upon

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the state office of General Counsel of The University of

Alabama System described herein.

6. Defendant R. Cooper Shattuck is the University of

Alabama Systems Gulf State Park Project Executive Director

and the designated officer for all contract negotiations,

interpretations and legal decisions designated by Defendant

Robert J. Bentley to coordinate and execute contracts on

behalf of the Gulf State Park Project Enhancement Team

composed of The University of Alabama System, the Office of

the Governor of the State of Alabama and the Alabama State

Department of Conservation and Natural Resources. Defendant

Shattuck was transferred from employment in the Office of

the Governor of Alabama by Defendant Robert Bentley and his

former Senior Political Advisor to spearhead the Governors

Gulf State Park Enhancement Project with a salary paid by

sources not authorized by the GSPA, and in so doing acts and

has acted in concert with the remaining named defendants

herein to unlawfully spend the state funds identified

herein, and he will continue to do so unless restrained by

an order from this Honorable Court.

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JURISDICTION AND VENUE

7. The Circuit Court for Montgomery County, Alabama

is the sole appropriate circuit court vested with

jurisdiction to hear and decide this Declaratory Judgment

Action against the named Defendants, and venue for

Plaintiffs challenge of the unlawful disbursements of state

funds complained of herein lies exclusively with the Circuit

Court for Montgomery County, Alabama.

ALLEGATIONS OF FACT

8. On or about August 1, 2013, after the Alabama

State Legislature enacted Act No. 2013-222 and Defendant

Governor Robert Bentley signed that act into law, it became

effective and was compiled into laws of the State of Alabama

as Code of Ala., 9-14E-1 through 9-14E-10 as the Gulf

State Park Projects Act (hereinafter referred to as the

GSPA).

9. The GSPA defined the Gulf State Park as [t]he

real property comprising approximately 6,150 acres, and any

future additions thereto, including facilities and fixtures

located thereon and appurtenances thereto, owned and managed

by the state and the department in south Baldwin County,

Alabama.

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10. The GSPA defined the Project as [r]eal and

personal property located on the approximately 29 acre

project site in the Gulf State Park, as described in sub-

division (12), to consist of some or all of the following:

Lodge facilities; conference, education and meeting space;

banquet areas; primary and specialty restaurants; recreation

and other facilities; business centers; and infrastructure

such as parking facilities; transportation facilities for

pedestrian and vehicular traffic; utilities; and other

structures or improvements as presented by the Governor in a

request for proposal provided herein or any other subsequent

hearing request.

11. The GSPA defined Project Revenues as [a]ll

gross earnings, income, receipts, lease payments, revenues,

and other moneys derived from or with respect to the

project.

12. The GSPA defined the Project Site as [t]he real

property located within Gulf State Park of approximately 29

acres more particularly described as follows: POC (Point of

Commencement) SW Corner Section 16, T9S, R4E; thence N 89

degrees 49'16"E, 5,290 feet to a calculated point in Lake

Shelby, being the SE corner of Section 16: Thence South

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644ft to a point, on the south ROW (Right of Way) of State

Road 182 and the east boundary of a deed with restrictions

(Deed Book 55n.s., Page 363-4, Baldwin Co.), being the POB

(Point of Beginning); thence eastwardly along said ROW for

2,644ft more or less to a point; thence south leaving said

ROW and passing east of existing cul-de-sac for 351ft more

or less to the CCL (Coastal Construction Line); thence

westward along CCL (Coastal Construction Line) for 2,592ft

more or less to a point on the East boundary of said deed;

thence north leaving CCL (Coastal Construction Line) and

along East boundary of said deed for 826ft more or less back

to the POB all containing 29.1AC+/-.

13. The GSPA provides, at Code of Ala., 9-14E-9:

Source of Funds. Other than project revenues,

only National Resource Damage Assessment funds orRestore Act funds may be expended to implementthis chapter. If the State of Alabama does notreceive or has not been awarded any NationalResource Damage Assessment funds or Restore Actfunds for the purposes of this chapter by December31, 2015, this chapter is repealed on January 1,2016.

14. On or about March 17, 2016, Defendants began

expending state funds on the Project to prepare a foundation

for the lodge and conference center described by the GSPA,

within the site also described by the GSPA, and Defendant R.

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Cooper Shattuck announced publicly on behalf of all named

Defendants:

The current work on the lodge is being funded

with monies awarded the project last year fromgrant funds provided by BP in 2010.

Attached as Exhibit A to this complaint is the Associated

Presss published report, dated March 18, 2016 at 12:07 PM,

through which Defendant R. Cooper Shattuck made this public

announcement.

15. In 2010, the current Gulf State Park Project did

not exist, its enabling act not taking effect until Act No.

2013-222 was enacted in 2013, and no grant funds provided

by BP in 2010 are authorized by the GSPA to be spent on the

Gulf State Park Project it describes.

16. The state funds currently being disbursed by the

named defendants, each in concert with the remaining named

defendants, are unlawful and violative of the Gulf State

Park Projects enabling act, Code of Ala., 9-14E-9, which

allows only project revenues, or National Resource Damage

Assessment funds, or Restore Act funds to be spent for

the purposes of this chapter.

17. The state funds being currently expended by

Defendants at this time, beginning March 17, 2016 and now

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being disbursed by them each day, are being unlawfully

expended and disbursed because they are not derived from any

source of funds allowed by Alabama law for the Gulf State

Project. Indeed, the Project did not exist in 2010, when

Defendant R. Cooper Shattuck admits the state funds

currently being spent were provided by BP.

18. The BP block grant state funds that are being

currently spent by Defendants for lodge foundation work at

Gulf State Park are, and will continue to be, unless

restrained by this Honorable Court, unlawful and in clear

violation of Code of Ala., 9-14E-1, et seq., which became

effective August 1, 2013, and at 9-14E-9, provides in

pertinent part:

Source of Funds. Other than project revenues,

only National Resource Damage Assessment funds orRestore Act funds may be expended to implementthis chapter. If the State of Alabama does notreceive or has not been awarded any NationalResource Damage Assessment funds or Restore Actfunds for the purposes of this chapter by December31, 2015, this chapter is repealed on January 1,2016.

19. The funds currently being spent by Defendants at

Gulf State Park for lodge foundation work are neither

National Resource Damage Assessment funds nor Restore Act

funds nor project revenues. Indeed, the Gulf State Park

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Project for which they are being expended did not exist

until 2013, and no National Resource Damage Assessment funds

or Restore Act funds have been lawfully awarded.

20. Defendants attempted to obtain approval to spend

National Resource Damage Assessment funds for construction

of the project described by this complaint and by Code of

Ala., 9-14E-1, et seq., but that attempt was enjoined by

the United States District Court for the Southern District

of Alabama on February 16, 2016. A copy of the Judgment and

Order of the United States District Court for the Southern

District of Alabama enjoining Defendants proposed spending

of National Resource Damage Assessment funds is attached as

Exhibit B to this complaint.

21. Without any lawful funds to spend upon the Project

at Gulf State Park, Defendants have boldly, unlawfully and

hastily proceeded to illegally spend state grant funds

provided by BP in 2010 upon current work on the lodge in

a manner disallowed by Code of Ala., 9-14E-1, et seq.

This unlawful and illegal spending will continue unabated

unless restrained by an appropriate order entered by this

Honorable Court.

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____________________________________________________________

COUNT ONE

COMPLAINT FOR DECLARATORY JUDGMENT

AND CHALLENGE TO RESTRAIN STATE OFFICERS ENGAGEDIN THE UNLAWFUL DISBURSEMENT OF STATE FUNDS____________________________________________________________

22. Plaintiff incorporates by reference all preceding

allegations contained in this complaint in support of this

Count One.

23. Plaintiff brings this civil action pursuant to the

Alabama Declaratory Judgment Act, Code of Ala., 66-220 et

seq., Rule 57, Alabama Rules of Civil Procedure, and case

law decided by the Supreme Court of Alabama in Ex parte

Chemical Waste Management, Inc., 929 So.2d 1007, 1013 (Ala.

2005); Zeigler v. Baker, 344 So.2d 761, 763-764 (Ala. 1977);

Goode v. Tyler, 237 Ala. 106, 109 (Ala. 1939) to obtain a

judicial declaration that Defendants are engaged in an

unlawful disbursement of state funds at Gulf State Park, and

to restrain them from doing so.

24. Plaintiff is a person under Code of Ala., 6-6-

220. His rights, status and legal relations have been

rendered uncertain and insecure by the acts of Defendants

complained of herein and he is entitled, under Code of Ala.,

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6-6-221 to have his and Defendants rights, status and

other legal obligations by this action liberally construed

and administered. Plaintiff is also entitled, under

Alabama law, to seek from this Honorable Court, pursuant to

Code of Ala., 6-6-222, a declaration that Defendants

disbursements of state funds described herein are unlawful,

and to have them restrained by an appropriate order entered

by this Honorable Court pursuant to Code of Ala., 6-6-230.

25. Plaintiff pursues this declaratory judgment remedy

pursuant to the above-cited statutory authority which allows

him, as a taxpayer, to challenge and restrain unlawful

disbursements of state funds. Ex parte Chemical Waste

Management, Inc., 929 So.2d 1007, 1013 (Ala. 2005); Zeigler

v. Baker, 344 So.2d 761, 763-764 (Ala. 1977); Goode v.

Tyler, 237 Ala. 106, 109 (Ala. 1939).

Wherefore, Plaintiff respectfully demands that this

Honorable Court enter a declaratory judgment holding that

Defendants have unlawfully spent the state funds identified

herein, and as further relief pursuant to Code of Ala., 6-

6-230, enter an order restraining them from further spending

such funds, or any funds whatsoever, in violation of Code of

Ala., 9-14E-1, et seq. Plaintiff additionally seeks an

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order from this Honorable Court for an accounting of all

funds unlawfully spent in violation of Code of Ala., 9-

14E-1, et seq. and restitution of those funds.

____________________________________________________________

COUNT TWO

PETITION WRIT OF QUO WARRANTO____________________________________________________________



Count Two.

27. Defendant R. Cooper Shattuck is paid a salary from

state funds, through the University of Alabama System, to

spearhead Defendant Robert Bentleys Gulf State Park

Enhancement Project in a manner that violates Code of Ala.,

9-14E-1, et seq., which became effective August 1, 2013,

and at 9-14E-9, provides in pertinent part:

Source of Funds. Other than project revenues,only National Resource Damage Assessment funds orRestore Act funds may be expended to implementthis chapter. If the State of Alabama does notreceive or has not been awarded any NationalResource Damage Assessment funds or Restore Actfunds for the purposes of this chapter by December31, 2015, this chapter is repealed on January 1,2016.

28. Defendant R. Cooper Shattuck, and other State of

Alabama employees of the University of Alabama System who

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act at his direction in connection with his service as

Executive Director of The University of Alabama Systems

Gulf State Park Project, daily foment unlawful disbursement

of state funds to implement the Gulf State Park Project at

Gulf State Park in violation of Code of Ala., 9-14E-9, and

these usurpations and intrusions upon the office of General

Counsel of The University of Alabama System are not only

subject to restraint pursuant to case law decided by the

Supreme Court of Alabama in Ex parte Chemical Waste

Management, Inc., 929 So.2d 1007, 1013 (Ala. 2005); Zeigler

v. Baker, 344 So.2d 761, 763-764 (Ala. 1977); Goode v.

Tyler, 237 Ala. 106, 109 (Ala. 1939), but also pursuant to

the quo warranto provisions of Code of Ala., 6-6-590, et

seq.

29. In the course of spearheading Defendant Robert

Bentleys Gulf State Park Enhancement Project in a manner

that violates Code of Ala., 9-14E-1, et seq., which became

effective August 1, 2013, Defendant R. Cooper Shattuck, has

acted, and continues to act daily, in concert with each of

the remaining named Defendants to also participate in the

unlawful disbursement of state funds to pay other University

of Alabama System employees to work on Defendant Robert

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Bentleys Gulf State Park Enhancement Project while being

paid by state funds from state sources legally barred by

Code of Ala., 9-14E-1. Defendants have also knowingly and

willfully allowed state funds to be illegally spent from

sources disallowed by Code of Ala., 9-14E-1 for attendant

costs associated with the usurpation and intrusion upon

Defendant R. Cooper Shattucks intrusion of the Gulf State

Park Enhancement Project onto his office as General Counsel

of The University of Alabama System.

30. Plaintiff therefore invokes the remedial writ of

Quo Warranto, codified at Code of Ala., 6-6-590, et seq.,

in the name of the State of Alabama, to compel Defendant R.

Cooper Shattuck to cease the usurpation and intrusion upon

his public office as general counsel to the University of

Alabama System of expenditures of state funds disallowed by

Code of Ala., 9-14E-1 for his salary and professional

services, and the salaries and professional services of any

and all University of Alabama System employees working under

his direction for Defendant Robert Bentleys Gulf State Park

Enhancement Project.

31. A copy of University of Alabama Systems current

website posting, describing and admitting Defendant R.

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Cooper Shattucks allowance of Defendant Robert Bentleys

Gulf State Park Enhancement Project to usurp and intrude

upon his office as General Counsel to the University of

Alabama System, depleting state funds from sources other

than those allowed by Code of Ala., 9-14E-1 to be expended

to implement the GSPA is attached as Exhibit C to this

complaint.

Wherefore, as a private person empowered to bring this

action in the name of the State of Alabama, to restrain

unlawful disbursements of state funds and daily usurpations

and intrusions upon the state office of General Counsel to

the University of Alabama System, Plaintiff prays and

requests:

A. Pursuant to Code of Ala., 6-6591(b), that this

Honorable Court direct that this action be commenced, upon

its preliminary belief that the acts specified herein can be

proved and that it is necessary for the public good;

B. Alternatively, Plaintiff will, if required by this

Honorable Court so to do, post security for reasonable costs

of this action, for approval by the Clerk of the Court; and

C. Plaintiff respectfully demands that this Honorable

Court enter a remedial writ and order disallowing the daily

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usurpations and intrusions upon the state office of General

Counsel to the University of Alabama System, now occupied

by Defendant R. Cooper Shattuck, the same being suffered by

that office daily, accompanied by unlawful expenditures of

state funds for his salary and expenses and costs attendant

to the usurpation and intrusion upon that office complained

of herein, all in violation ofCode of Ala., 9-14E-9, and

all accomplished at the behest of Defendant Robert Bentley

and Defendant R. Cooper Shattuck while he also occupies the

office of Executive Director of the University of Alabama

Systems Gulf State Park Project, directing employees of

the University of Alabama System to act in concert with him

to receive salaries and payments, or direct salaries and

payment of other sums, all from sources of state funds that

are disallowed by Code of Ala., 9-14E-9.

____________________________________________________________

COUNT THREE

COMPLAINT FOR DECLARATORY JUDGMENT THAT CODE OF ALA., 9-14E-1 THROUGH 9-14E-10 WERE REPEALED, PURSUANT TO

9-14E-9 ON JANUARY 1, 2016____________________________________________________________



Count Three.

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33. Due to the injunction and judgment entered by the

United States District Court for the Southern District of

Alabama on February 16, 2016, attached as Exhibit B to

this complaint, no National Resource Damage Assessment funds

have been lawfully received or awarded to the State of

Alabama for the purposes required by Code of Ala., 9-14E-

9, and Restore Act funds have not been lawfully received or

awarded to the State of Alabama for the purposes required by

Code of Ala., 9-14E-9.

34. Pursuant to Code of Ala., 9-14E-9:

If the State of Alabama does not receive or hasnot been awarded any National Resource DamageAssessment funds or Restore Act funds for thepurposes of this chapter by December 31, 2015,this chapter is repealed on January 1,2016.

Wherefore, pursuant to the Alabama Declaratory Judgment

Act, Code of Ala., 66-220 et seq., Rule 57, Alabama Rules

of Civil Procedure, and case law decided by the Supreme

Court of Alabama in Ex parte Chemical Waste Management,

Inc., 929 So.2d 1007, 1013 (Ala. 2005); Zeigler v. Baker,

344 So.2d 761, 763-764 (Ala. 1977); Goode v. Tyler, 237 Ala.

106, 109 (Ala. 1939) Plaintiff respectfully demands that

this Honorable Court judicially declare Code of Ala., 9-

14E-1 through 9-14E-10 were repealed pursuant to Code of

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Ala., 9-14E-9 on January 1, 2016. Plaintiff respectfully

demands, as further relief pursuant to Code of Ala., 6-6-

222 and 6-6230, and the authorities cited herein, an order

and judgment that Defendants are restrained from the

expenditure of state funds for any of the purposes described

by Code of Ala., 9-14E-1 through 9-14E-10, due to their

repeal pursuant to the above cited provision ofCode of

Ala., 9-14E-9.

s/William J. BaxleyWilliam J. Baxley [email protected]

S/Joel E. DillardJoel E. Dillard [email protected]

s/Elizabeth W. McElroy

Elizabeth W. McElroy [email protected]

BAXLEY, DILLARD, McKNIGHT,JAMES & McELROYPost Office Box 530333Birmingham, AL 35253-0333Telephone: 205.271.1100Telecopier: 205.271.1108

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CERTIFICATE OF SERVICE

I hereby certify that on this the 11 day of April,th

2016, a copy of the above and foregoing document was servedon all parties by placing a copy of same in the United

States mail, postage prepaid and properly addressed asfollows:

Robert BentleyOffice of the GovernorState of Alabama600 Dexter AvenueMontgomery, Alabama 36130

Gunter Guy,

Commissioner, Department ofConservation and Natural ResourcesState of Alabama64 North Union StreetMontgomery, Alabama 36130

Luther StrangeAttorney GeneralState of Alabama501 Washington AvenueMontgomery, Alabama 36104

William NewtonFinance DirectorState of Alabama600 Dexter AvenueMontgomery, Alabama 36130

R. Cooper ShattuckUniversity of Alabama SystemSid McDonald Hall500 University Boulevard East

Tuscaloosa, Alabama 35401

s/ Elizabeth W. McElroyOf Counsel

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Grimsley v Bentley