DOCUMENT 6

ELECTRONICALLY FILED
1/30/2023 8:43 AM
03-CV-2023-900132.00
CIRCUIT COURT OF
MONTGOMERY COUNTY, ALABAMA
GINA J. ISHMAN, CLERK
IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, ALABAMA

STATE OF ALABAMA, ex rel. )

STEVE MARSHALL, Attorney General )
for the State of Alabama, )
)
Plaintiff, )
)
v. ) CASE NO.: 03-CV-23-900132
)
JOHN Q. HAMM, in his official capacity )
as Commissioner of the Alabama )
Department of Corrections; )
CAM WARD, in his official capacity as )
Director of the Alabama Bureau of )
Pardons and Paroles, )
)
Defendants. )

MOTION FOR TEMPORARY RESTRAINING ORDER

AND PRELIMINARY INJUNCTION

Plaintiff the State of Alabama, by and through Attorney General Steve Marshall,

respectfully moves for a Temporary Restraining Order pursuant to Alabama Rule of Civil

Procedure 65(b) prohibiting Defendant Alabama Department of Corrections Commissioner Hamm

from releasing inmates scheduled for early release into the supervision of Defendant Alabama

Bureau of Pardons and Paroles Director Ward until such time as Commissioner Hamm provides

victims with the statutorily-required prior notice of the inmates’ release. The early release set in

Alabama Act 2021-549 will go into effect January 31, 2023. Plaintiff only recently learned that

victims have not received notice of criminal offenders’ scheduled early release. Since releasing

inmates into the supervision of ABPP without providing victims prior notice would irreparably

injure the victims whose interests Plaintiff asserts, Plaintiff moves for a Temporary Restraining

Order.
 DOCUMENT 6

LEGAL STANDARD

“The elements required for the issuance of a TRO are the same as the elements required

for the issuance of a preliminary injunction.” Lott v. E. Shore Christian Ctr., 908 So. 2d 922, 927

(Ala. 2005). A plaintiff seeking a TRO has the burden of showing “(1) that without the TRO the

plaintiff would suffer immediate and irreparable injury; (2) that the plaintiff has no adequate

remedy at law; (3) that the plaintiff has at least a reasonable chance of success on the ultimate

merits of his case; and (4) that the hardship imposed on the defendant by the TRO would not

unreasonably outweigh the benefit accruing to the plaintiff.” Id. (cleaned up). “A temporary

restraining order may be granted without written or oral notice to the adverse party or that party’s

attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified

complaint that immediate and irreparable injury, loss, or damage will result to the applicant before

the adverse party or that party’s attorney can be heard in opposition, and (2) the applicant’s

attorney certifies to the court in writing the efforts, if any, which have been made to give the notice

and the reasons supporting the claim that notice should not be required.” Ala. R. Civ. P. 65(b).

ARGUMENT

A. Plaintiff Has Demonstrated a Reasonable Chance of Success on the Merits Because

Commissioner Hamm Has Failed to Provide Notice to Victims Prior to Inmates’ Early
Release Scheduled for January 31, 2023.

“The Attorney General or district attorney may assert any right to which the victim is

entitled.” Ala. Code § 15-23-83. The 2021 statute providing for the early release of inmates in

ADOC custody expressly provides crime victims the right to prior notice of the early release of

ADOC inmates. “Prior to the defendant’s release to supervision [to ABPP] pursuant to this

section, notice of the release shall be provided by the department [ADOC] to the victim and

2
 DOCUMENT 6

interested parties through the victim notification system established pursuant to Section 15-22-

36.2.” Ala. Act 2021-549 § 1 (codified at Ala. Code § 15-22-26.2(c)) (emphasis added).

Plaintiff has submitted a Verified Complaint demonstrating that Commissioner Hamm has

failed to provide victims and interested parties with notice of those inmates’ scheduled release

under the Act. In interpreting the notice requirement in the statute, the words used in the statute

“must be given their natural, plain, ordinary, and commonly understood meaning.” IMED Corp.

v. Sys. Eng’g Assocs. Corp., 602 So. 2d 344, 346 (Ala. 1992). The Legislature expressly stated

victims must be given notice “[p]rior to the defendant’s release” with the early release date to

“become effective on January 31, 2023.” Ala. Act 2021-549 §§ 1, 3. Plaintiff has easily carried its

burden of demonstrating a reasonable chance of success on its statutory duty argument.

Sovereign immunity under Article I, Section 14 of the Alabama Constitution of 2022 does

not bar Plaintiff’s claim. While official-capacity claims against state officials, such as

Commissioner Hamm and Director Ward, are ordinarily considered claims “against the state”

barred by § 14 immunity, the following exceptions “do not come within the prohibition of § 14”:

(1) actions brought to compel State officials to perform their legal

duties; (2) actions brought to enjoin State officials from enforcing
an unconstitutional law; (3) actions to compel State officials to
perform ministerial acts; and (4) actions brought under the
Declaratory Judgments Act ... seeking construction of a statute
and its application in a given situation. Other actions which are not
prohibited by § 14 are: (5) valid inverse condemnation actions
brought against State officials in their representative capacity; and
(6) actions for injunction or damages brought against State
officials in their representative capacity and individually where it
was alleged that they had acted fraudulently, in bad faith, beyond
their authority or in a mistaken interpretation of law.

Ex parte Moulton, 116 So. 3d 1119, 1131-32 (Ala. 2013) (emphasis added). Plaintiff’s suit falls

under exceptions (1), (3), (4), and (6) to sovereign immunity because it seeks to compel Defendants

3
 DOCUMENT 6

to perform their legal duty to provide crime victims prior notice before giving inmates the early

release provided by the statute.

As a result, Plaintiff has demonstrated a “reasonable chance of success” on its claim that

Defendants have failed to comply with the prior notice requirement of the Act and that the Court

may compel them to act by a TRO. See Lott, 908 So. 2d at 927.

B. The Victims Whose Interests Plaintiff Represents Will Suffer Immediate and
Irreparable Injury Without a TRO Because They Have No Notice of the Imminent
Release of Inmates Who Committed Crimes Against Them.

An “irreparable injury” is “an injury that is not redressable in a court of law through an

award of money damages.” Ormco Corp. v. Johns, 869 So. 2d 1109, 1113 (Ala. 2003) (internal

quotation and citation omitted). A crime victim’s right to prior notice of ADOC inmates’ early

release is an intangible right that cannot be redressed through any form of monetary

compensation—a right this is unavailable here in any event due to the Defendants’ sovereign

immunity. Nor can the right to prior notice be restored once it is lost.

The purpose of giving victims a statutory right to prior notice of inmates’ release is so that

the victims are aware and can take steps to prevent themselves or their loved ones from any

potential for re-victimization. See, e.g., Ala. Code § 15-20A-2(1) (stating that the release of

information about sex offenders to the public “creates better awareness and informs the public of

the presence of sex offenders in the community, thereby enabling the public to take action to

protect themselves.”). But once early release defendants are released without the required prior

notice to victims, victims can never get their right to notice back because it is too late.

Plaintiff’s injury is a classic “irreparable injury” that can be prevented only by the issuance

of a TRO.

4
 DOCUMENT 6

C. Since the Act Otherwise Requires Early Release by January 31, 2023, Plaintiff Has
No Adequate Remedy at Law Absent a TRO.

Defendants scheduled for early release under the Act are entitled to early release by

operation of law notwithstanding the failure of Defendants to provide victims with prior notice.

The statute provides no right of appeal or other remedy for victims to enforce their right to prior

notice. Despite Defendants’ failure to provide prior notice to victims, they are otherwise under an

obligation to comply with the early release mandate of the statute set for January 31, 2023. As a

result, Plaintiff has no adequate remedy at law absent a TRO preventing Defendants from

complying with early release until such time as victims are provided notice.

D. The Hardships Imposed on Defendants—and Inmates Scheduled for Early Release—

Do Not Unreasonably Outweigh the Hardship Imposed on the Victims Whose
Interests Plaintiff Asserts.

Finally, Plaintiff can easily carry its burden of demonstrating “that the hardship imposed

on the defendant by the injunction would not unreasonably outweigh the benefit accruing to the

plaintiff.” Perley for Benefit of Tapscan, Inc., 646 So. 2d at 587; see also Ala. Power Co. v.

Drummond, 559 So. 2d 158, 162 (Ala. 1990). Plaintiff’s Verified Complaint for declaratory and

injunctive relief seeks only to require Defendants to comply with a pre-existing legal and statutory

duty. By contrast, the hardships imposed on Plaintiff, and the victims it represents, are substantial.

Crime victims will forever lose their right to prior notice of the early release of inmates, thereby

losing their ability to take steps to protect themselves or their loved ones from the potential for re-

victimization. The permanent loss of a statutory right to prior notice far outweighs any burdens

imposed on Defendants to follow the law.

Further, victims’ rights to prior notice outweigh inmates’ rights to early release under the

Act. See Ala. Power Co. v. Drummond, 559 So. 2d 158, 162 (Ala. 1990) (stating that a “court may

‘balance the equities’ in deciding whether to grant an injunction.”). Here, the equities weigh in

5
 DOCUMENT 6

favor of victims who have done nothing either to become victims of crime or to cause Defendants’

failure to perform their duty. By contrast, Plaintiff seeks a delay of inmates’ early release only

until such time as Defendants can provide victims with the required prior notice. Plaintiff does not

seek to enjoin the early release provided under the Act but only to delay it until it can be

implemented as the Legislature intended. While the inmates have also done nothing to cause

Defendants’ failure to perform their duties, it is more equitable for those convicted of serious

crimes to bear the burden of a brief delay in early release than for victims of crime to permanently

lose their right to know about such release.

“A preliminary injunction has as its purpose to maintain the status quo pending the

resolution of the action on its merits.” Jacobs Broad. Grp., Inc. v. Jeff Beck Broad. Grp., LLC, 160

So. 3d 345, 349 n.3 (Ala. 2014). The equities here weigh in favor of entering a TRO to maintain

the status quo and prevent the early release of inmates scheduled to begin January 31, 2023, for

only so long as needed for Defendants to notify victims as required by the Act.

E. Plaintiff Has Satisfied All Other Procedural Requirements for a TRO.

Alabama Rule of Civil Procedure 65(b) provides that a court may enter a TRO “without

written or oral notice to the adverse party or that party’s attorney only if (1) it clearly appears from

specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury,

loss, or damage will result to the applicant before the adverse party or that party’s attorney can be

heard in opposition, and (2) the applicant’s attorney certifies to the court in writing the efforts, if

any, which have been made to give the notice and the reasons supporting the claim that notice

should not be required.” Ala. R. Civ. P. 65(b).

Requirement (1) is satisfied because Plaintiff has filed a Verified Complaint and has

demonstrated that immediate and irreparable injury will result unless the Court grants a TRO

6
 DOCUMENT 6

today, which may not allow time for Defendants to be heard in opposition. Requirement (2) is

satisfied because Plaintiff learned of Defendants’ failure to provide notice to victims only on

Friday, January 27th and prepared the Verified Complaint and TRO motion as quickly as possible.

In addition, the undersigned has taken steps to serve Defendants as quickly as possible and has

provided copies of all filings by e-mail to General Counsel for ADOC and ABPP. Finally, Plaintiff

is exempt from the requirement to post a bond before a TRO is entered because it is the State of

Alabama. See Ala. R. Civ. P. 65(c).

CONCLUSION

Plaintiff has carried its burden of demonstrating its entitlement to a TRO. Plaintiff

respectfully requests that the Court enter a TRO preventing Commissioner Hamm from releasing

inmates scheduled for early release under the Act to the supervision of Director Ward until such

time as Commissioner Hamm provides notice to victims and interested parties as required by the

Act. Plaintiff further requests that the Court set this matter for a preliminary injunction hearing

prior to the expiration of the 10-day limit for a TRO unless the 10-day period is extended for good

cause shown or by consent of Defendants.

Respectfully submitted this 30th day of January 2023.

Steve Marshall
Attorney General

/s/ Katherine Robertson

Katherine Robertson
Chief Counsel, Deputy Attorney General

/s/ Brad A. Chynoweth

Brad A. Chynoweth
Assistant Chief Deputy, Civil Division

7
 DOCUMENT 6

OFFICE OF THE ATTORNEY GENERAL

501 Washington Avenue
Montgomery, Alabama 36130-0152
Telephone: (334) 242-7300
Fax: (334) 353-8400
[email protected]
[email protected]

8
 DOCUMENT 6

CERTIFICATE OF SERVICE

I hereby certify that on this the 30th day of January 2023, I electronically filed a copy of

the foregoing via Alafile. I have further served the foregoing on the following via hand delivery:

John Hamm, Commissioner Cam Ward, Director

Alabama Department of Corrections Alabama Bureau of Pardons and Paroles
301 Ripley Street 100 Capitol Commerce Boulevard
Montgomery, AL 36104 Montgomery, Alabama 36117

Undersigned has also served the following General Counsel via electronic mail:

Mary-Coleman Roberts Claudia Smith

ADOC Acting General Counsel Alabama Bureau of Pardons and Paroles General
[email protected] Counsel
[email protected]

/s/ Katherine Robertson

Katherine Robertson
Chief Counsel, Deputy Attorney General