On Monday, October 24, Jefferson County Presiding Judge Scott Vowell entered an order declaring that Section 27(a) of the Immigration Act unconstitutional. This section provides that "No court of this state shall enforce the terms of, or otherwise regard as valid, any contract between a party and an alien unlawfully present in the United States, if the party had direct or constructive knowledge that the alien was unlawfully present in the Untied States at the time the contract was entered into…." Judge Vowell referenced Section 95 of the Alabama Constitution, which provides that "There can be no law of this state impairing the obligations of contracts by destroying or impairing the remedy for their enforcement….After suit has been commenced on any cause of action the legislature shall have no power to take away such cause of action, or destroy any existing defense to such suit." Judge Vowell found that since the lawsuit was commenced before HB 56 was passed and signed into law, Section 27(a) would not apply to the pending action. Judge Vowell went on to state that "The Court declares that Section 27(a) of the Act violates the Alabama Constitution of 1901, to the extent the Legislature has attempted to take away an existing cause of action in a pending lawsuit." As such, this ruling ONLY APPLIES to lawsuits filed before HB 56 became effective. Also, this ruling is technically only binding on actions pending in Jefferson County, although other counties may rely on Judge Vowell’s opinion.
Practice pointers. The ruling declaring Section 27(a) unconstitutional only applies to cases filed before the HB 56 became effective. After Judge Vowell overruled that Defendant’s Motion to Dismiss, the parties settled the case, so an appeal of this order is very unlikely. I anticipate that other courts may examine the constitutionality of Section 27(a) in cases filed after the effective date of HB 56. The Federal Courts did not enjoin the enforcement of Section 27(a) in the federal litigation. Also, remember that a lawsuit challenging the constitutionality of HB 56 is still pending in State Court in Montgomery, and that judge has not yet ruled.