MONTGOMERY, Ala., July 11, 2007 -- Wednesday, attorneys from the Attorney General's Office responded to issues of concern raised by Circuit Judge Truman Hobbs Jr at a pre-trial hearing on July 9 and to defendant Nancy Worley's Motion to Dismiss filed on July 6, 2007. Jury selection starts Wednesday afternoon in the case.
According to the state's response to the defendant's motion to dismiss Judge Hobbs suggested at the hearing the five felony counts should be dismissed because "the statute at issue 17-1-7(b) Code of Alabama was unconstitutionally vague and overbroad."
Section 17-1-7(b) states "No person shall attempt to use his or her official authority or position for the purpose of influencing the vote or political action of any person. Any person who violates this subsection (b) shall be guilty of a felony and punishable by a fine not to exceed ten thousand dollars ($10,000) or imprisonment in the state penitentiary for a period not to exceed two years, or both."
Attorney's Bill Lisenby and Ben Baxley say in their filing:
What the State Expects to Show
In their response the state says they "expect to prove at trial that the Defendant, as Secretary of State for the State of Alabama and the chief elections officer of the state, sent a mailing with enclosures to five(5) subordinate employees in an attempt to influence the vote or political action of the said employees. The mailing included a letter that exhibited the following characteristics as evidence of Worley's attempt to invoke her official authority or position:"
- Two official seals of the state of Alabama incorporated in the letterhead.
- Personalization of each letter.
- Four references to "Secretary of State."
- The Statement "I want to ask for your support and your vote..." (emphasis in original)
- Reference to an enclosed envelope in which the victim could "volunteer, request a yard sign, etc."
- References to an enclosed "Worley Secretary of Stte" campaign bumber sticker for the victim's "vehicle's bumper or rear window."
"The State also expects to introduce evidence that the mailing did in fact include the referenced bumper sticker as well as a donation envelope. Further, the State expects to present evidence that Defendant Worley obtained the home addresses of some of the respective employees by virtue of her position as the chief executive in the Office of Secretary of State. Additionally, the State expects witnesses to testify that Worley, in her capacity of Secretary of State told employees that she could find out if they voted and for whom they voted."
The state in its response argues the "motion to dismiss is untimely" saying the objections "based on defects in the charge must be made at or before arraignment."
The government goes on to argue that the aruments raised by both Worley and the judge were based on hypotheticals. "This Honorable Court and the Defense espoused hypothetical situations that the Court deemed were causes for "concern." "In order to raise a constitutional challenge regarding vagueness" a litigant may not rely upon hypothetical situations that are in no way associated with facts surrounding the case against her." See City of Montgomery v. Zgouvas...
Furthermore attorneys for the state argue that "a statute is presumed constitutionally valid."
As to arguments by the Court at the July 9 hearing that "it had some 'real issues'" with the fact that the legislature made the 'solicit[ation of] any type of political campaign contributions, Section 17-1-17(c), a misdemeanor, but made the State's allegation in the indictment of 'soliciting: financial contributions, placement of a bumper sticker on a vehicle, 'door-to-door' activities, 'letter writing' activities, 'fundraising' activities, the obtaining of a 'yard sign', and/or the providing of 'clerical' assistance", a felony."
"Although 'political action' is not defined in the Code, it is the State's position that 'political action' in the context of the proof the State will offer against Ms. Worley encompasses the allegations of the indictment."
The state argues that "The Statute is not Vague or Overbroad as it relates to the defendant."
"Clearly, 'political action' has to encompass more than the contributing of money to a campaign. To find otherwise would allow a State, county, or city employee to put up campaign signs, hold fundraisers for a candidate, go door-to-door for a candidate, make telephone calls for a candidate, write letters on behalf of a candidate, or do a candidate's clerical work while on the State, county, or city time. If the Legislature can prohibit this kind of 'political action', which the State submits it can,...then the Legislature is authorized to establish the appropriate punishment for its violation."
Government attorneys then argue "The statute is not facially overbraod" and says Worley "cannot show that this statute is facially overbroad...Ms. Worley cannot show facial invalidity because 'some persons' arguably protected conduct may or may not be cauth or chilled by the statute'."
Quoting the Court from the hearing again, the state's attorneys say "This Honorable Court opined that it had 'real issues' with the intrepretation and appliction of section 17-1-7(b) and 17-1-7(c) Code of Alabama. Specifically, the Court expressed concern that the legislature chose to make soliciting money from a subordinate a misdemeanor and would choose to make 'influencing the vote or political action' of a person a felony."
"To the contrary, the State contends that the distinction makes perfect sense. Soldiers are not committed to the field of combat to protect our financial interests. They are committed to protect our democratic rights, principally and most importantly, the right to vote. That the legislature chose to more forcefully protect the more sacred rights with stronger laws should be expected...Further, Defendant Worley's actions in attempting to use her official position or authority to influence the vote or political action of here employees violated Alabama Code 17-6-4 that provides: 'Every voter in Alabama shall have the right ot vote a secret ballot, and that ballot shall be kept secret and inviolate.'"