author: PER CURIAM. SHAW, Justice MURDOCK, Justice

text:
    Albert Linch JORDAN v. ALABAMA STATE BAR ASSOCIATION.
    1091747.
    Supreme Court of Alabama.
    March 23, 2012.

      William N. Clark and William H. Mills of Redden, Mills & Clark, LLP, Birmingham, for appellant.
    J. Anthony McLain, gen. counsel, and Samuel S. Partridge, asst. gen. counsel, Alabama State Bar, for appellee.

       Retired Associate Justice R. Bernard Har-wood, Jr., was appointed on October 5, 2011, and Court of Civil Appeals Judge Terri Will-ingham Thomas was appointed on January 26, 2012, to serve as Special Justices in regard to this appeal.

   On Rehearing Ex Mero Motu

PER CURIAM.

On December 16, 2011, this Court issued an opinion in this case, and on December 19, 2011, it issued an order placing this case on rehearing ex mero motu and withdrawing the December 16, 2011, opinion. We now issue the following opinion.

Albert Linch Jordan appeals from an order of the Disciplinary Board (“the Board”) of the Alabama State Bar Association (“the Bar”) determining that Jordan has been convicted of a “serious crime” for purposes of Rule 22(a)(2), Ala. R. Disc. P., which provides that the Disciplinary Commission of the Bar shall disbar or suspend a lawyer who has been convicted of a “serious crime.” Specifically, Rule 22(a)(2) provides: “The Disciplinary Commission shall disbar or suspend a lawyer ... [i]f the lawyer’s conviction for a ‘serious crime,’ as defined in Rule 8 of these Rules, has become final ... in any court of record of this state or any other state, or of the United States, or of a territory of the United States.” Rute 8(c)(2), Ala. R. Disc. P., defines a “serious crime” as:

“(A) A felony;
“(B) A lesser crime involving moral turpitude;
“(C) A lesser crime, a necessary element of which, as determined by the statutory or common-law definition of such crime, involves interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or
“(D) An attempt, a conspiracy, or the solicitation of another to commit a ‘serious crime.’ ”

Jordan seeks a reversal of the Board’s determination. We reverse and remand.

Facts and Procedural History

The present proceeding originates from a long-running dispute related to an election contest challenging the 1998 election of the Jefferson County sheriff. See, e.g., Eubanks v. Hale, 752 So.2d 1113 (Ala.1999). The Board’s order sets out the uncontroverted material facts and the procedural history of this matter as follows:

“Mr. Jordan was retained by Jimmy Woodward, at the time the Sheriff of Jefferson County, Alabama, to contest the results of the 1998 General Election. The basis for the contest was Sheriff Woodward’s belief that felons not eligible to vote in fact voted by absentee ballot.
“As a result of Mr. Jordan’s representation of Sheriff Woodward, an indictment was returned in the United States District Court for the Northern District of Alabama alleging that both Mr. Jordan and Sheriff Woodward utilized employees of the Sheriffs office to access the National Crime Information Center database (NCIC), thereby obtaining criminal records of certain individuals who voted by absentee ballot in the referenced election. The indictment charged violation of 18 U.S.C. § 641 and § 371.
“After trial by jury, Mr. Jordan was found guilty of conspiring to violate and of violating 18 U.S.C. § 641. Mr. Jordan received a sentence of probation for six (6) months and a Five Hundred Dollar ($500.00) fine.
“Mr. Jordan appealed the conviction to the Eleventh Circuit.[] He asserted that the indictment should have been dismissed, claiming that it failed to provide him with the notice necessary to enable a defense, that the evidence was insufficient to support his conviction and [that] the District Court erred by refusing to give certain jury instructions requested by Mr. Jordan. These arguments were considered and rejected by the Court resulting in Mr. Jordan’s conviction being affirmed. In affirming the conviction, the Court noted since the value of the property converted was less than One Thousand Dollars ($1,000.00), the conviction was of a Class A Misdemeanor.”

(Footnote omitted.)

Following the affirmance of Jordan’s convictions by the United Stated Court of Appeals for the Eleventh Circuit, the General Counsel of the Bar, on May 12, 2006, petitioned the Disciplinary Commission to suspend or disbar Jordan pursuant to Rule 22(a)(2) on the basis that he had been convicted of a “serious crime.” In his answer to the Bar’s petition, Jordan asserted several defenses and “denie[d] that he [had] been convicted of any ‘serious offense.’ ” The matter then went before the Board for a determination as to whether Jordan had been convicted of a “serious crime” as that term is defined in Rule 8(c)(2). See Rule 22(a)(2) (“Whether a lawyer’s conviction involves a serious crime as defined in Rule 8(c)(2)(B), (C), and (D) shall be made by the Disciplinary Board upon petition by the General Counsel. The Disciplinary Board may conduct a hearing to assist it in making this determination.”). At the hearing conducted by the Board, the Bar indicated that it was proceeding against Jordan primarily pursuant to Rule 8(c)(2)(C) and (D), i.e., on grounds that Jordan’s crimes constituted lesser crimes involving fraud, misappropriation, and/or theft and conspiracy. Following the hearing, the Board on September 16, 2010, entered an order containing a unanimous finding that “[t]he statutory definition of the conduct prohibited by § 641 clearly requires the knowing conversion of a thing of value or the receipt, concealment or retention of the same with the intent to convert” and that, correspondingly, “Jordan’s conviction ... required theft or misappropriation.” Based on that determination, the Board’s order also included the following conclusions of law:

“1. The subject crimes, i.e., convictions of 18 U.S.C. § 641 and § [371] do not involve moral turpitude and therefore are not serious crimes as defined by Rule 8(c)(2)(B).
“2. The conviction of violating 18 U.S.C. § 641 is a serious crime as defined by Rule 8(e)(2)(C).
“3. The conviction of violating 18 U.S.C. § [371] is a serious crime as defined by Rule 8(c)(2)(D).”

Jordan timely filed a notice of appeal.

Standard of Review

The parties agree that the standard of review to be applied to Jordan’s appeal is a de novo review. See Alabama State Bar v. Tipler, 904 So.2d 1237, 1240 (Ala.2004) (“The Board of Disciplinary Appeals made legal conclusions regarding Rule 8(c)(2)(C) and Rule 22(a)(2), Ala. R. Disc. P.; therefore, we review those conclusions de novo.”). See also Tipler v. Alabama State Bar, 866 So.2d 1126, 1137 (Ala.2003).

Discussion

On appeal, Jordan contends that, contrary to the Board’s decision, his misdemeanor convictions are not “serious crimes.” Additionally, he argues that, as used in Rule 22, “the term ‘serious crime’ ... [is] unconstitutionally vague.” Finally, Jordan contends that the Board’s decision was contrary to “precedents” established in previous disciplinary proceedings and, thus, that its decision denied him due process of law.

Although the indictment charging Jordan with the offenses the Board determined to be “serious crimes” is not included in the record on appeal, the charges were briefly explained by the United States Court of Appeals for the Eleventh Circuit in United States v. Jordan, 582 F.3d 1239 (11th Cir.2009):

“On June 21, 2000, a Northern District of Alabama grand jury returned an indictment charging [Jefferson County Sheriff Jimmy] Woodward and Jordan, in Count One, with conspiring, in violation of 18 U.S.C. § 371, to violate 18 U.S.C. § 641 by receiving, retaining, and converting NCIC [National Crime Information Center] records to their own use. Count Two charged Woodward with conveying the NCIC records to Jordan, and Count Three charged Jordan with receiving them, both acts in violation of § 641.”

582 F.3d at 1244 (footnotes omitted; emphasis added). The Eleventh Circuit Court of Appeals then summarized the pertinent factual underpinnings of the indictment charging Jordan:

“Count one, alleging a conspiracy to violate 18 U.S.C. § 641, tracked the language of § 641 and asserted that the defendants required employees of the Sheriffs office to access the NCIC [National Crime Information Center] and ACJIS [Alabama Criminal Justice Information System] databases, obtain printouts of the criminal records of absentee voters, and then deliver the printouts, which as property of the United States had a value in excess of $1,000, to Jordan for use in Woodward’s election contest. ... The overt acts committed in furtherance of the conspiracy included the November 5, 1998 telephone conversation between [Royce] Fields[, the assistant sheriff,] and Jordan, the completion of the NCIC searches, the delivery of the information they disclosed to Jordan, and [a] meeting with District Attorney Brown .... In Counts Two and Three, respectively, the indictment alleged that Woodward conveyed to Jordan and Jordan received from Woodward a ‘thing of value of the United States, that is, information contained in the NCIC records.’ ... ”

582 F.Sd at 1246.

First, we address Jordan’s contention that his conviction for violating 18 U.S.C. § 641 does not constitute a “serious crime” as that term is defined in Rule 8(c)(2)(C).

This is not the first time this Court has been called upon to review the issue whether “a crime less than a felony and not involving moral turpitude [may] be considered a ‘serious crime’ ” as that term is defined in Rule 8. Tipler, 904 So.2d at 1239. See also Alabama State Bar v. Quinn, 926 So.2d 1018 (Ala.2005). In Tipler, in which we were also applying Rule 22(a)(2) and Rule 8(c)(2), we stated “[t]he dispositive issue” in that case as “whether Tipler’s conviction ... [was] a ‘serious crime’ within the meaning of Rule 8(c)(2)(C).” 904 So.2d at 1240. In Tipler, we stated that, in making its determination whether the crime falls within the definition of a “serious crime” found in Rule 8(c)(2)(C), Ala. R. Disc. P., the Board “is required to consider only the necessary elements of the crime.” 904 So.2d at 1241. We further explained in Tipler that a review of the plain language of the charging statute will reveal the necessary elements: “Rule 8(c)(2)(C) defines a crime as a ‘serious crime’ if the necessary elements of the statutory definition of the crime involve [‘misappropriation, or theft’].” Id. at 1241.

At the underlying hearing, the Bar argued, as it does on appeal, that, under the plain language of 18 U.S.C. § 641, the conversion underlying Jordan’s conviction for violating that statute amounted to “theft” or “misappropriation” of property, which meets the definition of a “serious crime” for purposes of Rule 8(c)(2)(C). As noted above, this Court has previously determined that neither the Board nor this Court is “free to examine the degree of ‘seriousness’ of the crime,” but we are, instead, “required to consider only the necessary elements of the crime when determining whether the crime falls within the definition of a ‘serious crime’ found in Rule 8(c)(2)(C), Ala. R. Disc. P.” Tipler, 904 So.2d at 1241. Therefore, because the elements of the charged offense are determinative of the issue, we move directly to an analysis of the charging statute, 18 U.S.C. § 641.

18 U.S.C. § 641 provides:

“Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or
“Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted—
“Shall be fined under this title or imprisoned not more than ten years, or both; but if the value of such property in the aggregate, combining amounts from all the counts for which the defendant is convicted in a single case, does not exceed the sum of $1,000, he shall be fined under this title or imprisoned not more than one year, or both.
“The word ‘value’ means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.”

Manifestly, § 641 describes different scenarios whereby an individual might be deemed guilty of a violation of the statute. Notably, the first paragraph of that section states that culpable conduct occurs whenever the offender “embezzles, steals, purloins, or knowingly converts to his use or the use of another ... any record, voucher, money, or thing of value of the United States or of any department or agency thereof,” while the second paragraph is restricted to situations where an offender “receives, conceals, or retains” such an item “with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted.” Thus, a comparison between paragraph one and paragraph two of § 641 leads readily to the conclusion that paragraph two does not involve the culpable conduct of actual embezzlement, stealing, purloining, or converting but, rather, involves only the culpable conduct of receiving, concealing, or retaining property known to have been embezzled, stolen, purloined, or converted with the intent thereafter to convert it to the offender’s own use or gain.

It is apparent from a reading of Jordan that the Eleventh Circuit Court of Appeals deemed that Jordan’s conduct and his resulting convictions under count one and count three, respectively, implicated only the following portions of the first two paragraphs of § 641:

“Whoever ... knowingly converts to his use or the use of another ... any record ... or thing of value of the United States or of any department or agency thereof ...; or
“Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been ... converted.”

582 F.Sd at 1242 n. 1 (stating that 18 U.S.C. § 641 “states, in pertinent part”). Given the abbreviated version of paragraph two provided by the Eleventh Circuit as being that portion “pertinent” to Jordan’s conviction under count three for violating § 641, the only issue relevant to his guilt under § 641 (count three) was whether he had received, concealed, or retained the National Crime Information Center (“NCIC”) materials “with intent to convert [them] to his use or gain, knowing [them] to have been ... converted.”

Although the record does not contain the jury’s verdict returned against Jordan in the United States District Court, the resulting judgment entered by the district court on the jury’s verdict reflects that Jordan was adjudged guilty of “Receiving a Thing of Value of the United States (Wrongfully Converted NCIC Records) with the Intent to Convert to His Own Use” in violation of § 641, as charged in count three of the indictment. Similarly, the petition instituting the underlying disciplinary proceeding against Jordan asserted, with respect to Jordan’s conviction under count three, that the conviction constitutes a “conviction of Receiving a Thing of Value of the United States (Wrongfully Converted NCIC Records) with the Intent to Convert to His Own Use.”

As noted, paragraph two of § 641 — the portion of the statute apparently underpinning the charge against Jordan in, and his conviction under, count three — authorizes the conviction of one who “receives, conceals, or retains [in this case, the NCIC records,] with intent to convert [them] to his use or gain, knowing [them] to have been embezzled, stolen, purloined or converted.” Thus, Jordan’s conviction under count three appears to have been based on his receiving the NCIC records with the intent to convert them, not his actual subsequent “use” or “conversion]” of them.

Therefore, as best we are able to discern from Jordan and from the attachments to the petition instituting the underlying disciplinary proceeding, the elements necessary to Jordan’s conviction under paragraph two of § 641 did not include as “a necessary element” theft or “misappropriation.” Thus, applying Tipler, we are unable to conclude, as Rule 8(c)(2)(C) requires, that the statutory definition of the crime of which Jordan was convicted under count three, predicated, as it apparently was, solely on paragraph two of § 641, involved as “a necessary element” the conduct of “misappropriation”; we are unable to conclude, therefore, that Jordan’s conviction under paragraph two of § 641 was a conviction for a “serious crime” as that term is defined in Rule 8(c)(2)(C).

Jordan further contends that his conviction for violating 18 U.S.C. § 371, as charged in count one, does not constitute a “serious crime” as defined in Rule 8(c)(2)(D). Jordan was convicted of conspiring with Woodward to violate 18 U.S.C. § 641 “by receiving, retaining, and converting NCIC records to their own use.” 582 F.3d at 1244. At the hearing before the Board, the Bar contended that, considering the plain language of 18 U.S.C. § 371, Jordan’s conviction under that statute was a conviction for crimes involving both theft and conspiracy for purposes of Rule 8(c)(2)(D).

Rule 8(c)(2)(D) defines a “serious crime” as “[a]n attempt, a conspiracy, or the solicitation of another to commit a ‘serious crime.’ ” The Bar contends that a Tipler analysis is proper for a determination under Rule 8(c)(2)(D); i.e., according to the Bar, whether a conviction for conspiracy with another to commit a “serious crime” is a “serious crime” as defined in Rule 8(c)(2)(D) rests solely on an examination of the necessary elements of the crime. Our analysis in Tipler, however, addressed the definition of a “serious crime” as defined in Rule 8(c)(2)(C), and we decline to extend Tipler to a determination of the question under Rule 8(c)(2)(D).

When considering whether a conviction for conspiracy to commit a “serious crime” is a “serious crime” as defined in Rule 8(c)(2)(D), the analysis must include, in addition to an examination of the elements of the offense, consideration of the facts supporting and the circumstances surrounding the conspiracy conviction.

“Decades ago the eminent jurist Learned Hand referred to conspiracy as ‘[the] darling of the modern prosecutor’s nursery.’ Harrison v. United States, 7 F.2d 259, 263 (2d Cir.1925). The validity of that observation has not diminished. See, e.g., United States v. Stoner, 98 F.3d 527, 533 (10th Cir.1996) (‘It is clear that a conspiracy charge gives the prosecution certain unique advantages and that one who must defend against such a charge bears a particularly heavy burden.’)”

United States v. Henderson, 794 F.Supp.2d 1236, 1287 (N.D.Okla.2011). In Krulewitch v. United States, 336 U.S. 440, 445-47, 69 S.Ct. 716, 93 L.Ed. 790 (1949), Justice Jackson in his special concurrence described the offense of conspiracy as “elastic, sprawling and pervasive.” He further opined:

“[The] history [of the federal law of conspiracy] exemplifies the ‘tendency of a principle to expand itself to the limit of its logic.’ The unavailing protest of courts against the growing habit to indict for conspiracy in lieu of prosecuting for the substantive offense itself, or in addition thereto, suggests that loose practice as to this offense constitutes a serious threat to fairness in our administration of justice.
“The modern crime of conspiracy is so vague that it almost defies definition. Despite certain elementary and essential elements, it also, chameleon-like, takes on a special coloration from each of the many independent offenses on which it may be overlaid. It is always ‘predominantly mental in composition’ because it consists primarily of a meeting of minds and an intent.
“... It is not intended to question that the basic conspiracy principle has some place in modern criminal law .... However, ... the looseness and pliability of the doctrine present inherent dangers which should be in the background of judicial thought wherever it is sought to extend the doctrine to meet the exigencies of a particular case.
“Conspiracy in federal law aggravates the degree of crime over that of uncon-certed offending. ...
“Thus the conspiracy doctrine will incriminate persons on the fringe of offending who would not be guilty of aiding and abetting or of becoming an accessory, for those charges only lie when an act which is a crime has actually been committed....
“A recent tendency has appeared in this Court to expand this elastic offense and to facilitate its proof. In Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 [(1946)], it sustained a conviction of a substantive crime where there was no proof of participation in or knowledge of it, upon the novel and dubious theory that conspiracy is equivalent in law to aiding and abetting.
“Of course, it is for prosecutors rather than courts to determine when to use a scatter gun to bring down the defendant, but there are procedural advantages from using it which add to the danger of unguarded extension of the concept.
“The trial of a conspiracy charge doubtless imposes a heavy burden on the prosecution, but it is an especially difficult situation for the defendant.”

336 U.S. at 445-51 (footnotes omitted). See also 2 Wayne R. LaFave, Substantive Criminal Law § 12.1(b), at 256 (2d ed. 2003) (“[I]t is clear that a conspiracy charge gives the prosecution certain unique advantages and that one who must defend against such a charge bears a particularly heavy burden.”).

As the foregoing recognizes, the broadness, elasticity, and pliability of the offense of conspiracy provide the prosecution with unique advantages not present when charging and prosecuting other offenses and place an unusually heavy burden on the defendant. To assure fairness and equity in an attorney-disciplinary proceeding, specifically when the determination is whether a conspiracy conviction constitutes a “serious crime” as defined in Rule 8(c)(2)(D), the analysis must include not only consideration of the elements of the conspiracy offense, but also consideration of the facts supporting and the circumstances surrounding the conviction. Examination of both the elements and these factors does not diminish the legitimacy of the conspiracy conviction, but it guarantees fairness and equity in attorney-discipline proceedings when determining whether a conviction for an offense that is so broad, loose, and pliable constitutes a “serious crime.” See Florida Bar v. Cox, 794 So.2d 1278, 1286 (Fla.2001) (“[L]awyer discipline must protect the public from unethical conduct but at the same time not deny the public the services of a qualified attorney.” (citing Florida Bar v. Pahules, 238 So.2d 130, 132 (Fla.1970) (emphasis added))).

Here, in reaching its finding that Jordan’s conviction for violating 18 U.S.C. § 371 constituted a “serious crime” as that term is defined in Rule 8(c)(2)(D), the Board limited its analysis to the necessary elements of the offense. Therefore, we reverse the Board’s finding that Jordan’s conspiracy conviction is a “serious crime” as that term is defined in Rule 8(c)(2)(D), and we remand the case for further proceedings consistent with the foregoing.

As to Jordan’s remaining issues on appeal, this Court finds them to be without merit, to be unpreserved, or to be unsupported by citation to legal authority as required by Rule 28(a)(10), Ala. R.App. P.

Conclusion

The Board’s finding that Jordan’s conviction for violating 18 U.S.C. § 641 constituted a “serious crime” as defined by Rule 8(c)(2)(C) is reversed; the Board’s finding that Jordan’s conviction for violating 18 U.S.C. § 371 constituted a “serious crime” as defined by Rule 8(c)(2)(D) is also reversed; and this case is remanded for proceedings consistent with this opinion.

ON REHEARING EX MERO MOTU: REVERSED AND REMANDED.

STUART, PARKER, and WISE, JJ., and HARWOOD and THOMAS, Special Justices, concur.

SHAW and MAIN, JJ., concur in part and dissent in part.

MALONE, C.J., and WOODALL, BOLIN, and MURDOCK, JJ., recuse themselves.

SHAW, Justice

(concurring in part and dissenting in part).

I concur with that portion of the main opinion holding that Albert Linch Jordan’s conviction under 18 U.S.C. § 641 is not a “serious crime” as that term is defined by Rule 8, Ala. R. Disc. P.

I respectfully dissent from the portion of the main opinion holding that a conviction under 18 U.S.C. § 371 for conspiracy to convert property might not, under the circumstances of this case, be a “serious crime.”

Rule 8(c)(2) defines a “serious crime” as follows:

“(2) A ‘serious crime’ is defined as:
“(A) A felony;
“(B) A lesser crime involving moral turpitude;
“(C) A lesser crime, a necessary element of which, as determined by the statutory or common-law definition of such crime, involves interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or
“(D) An attempt, a conspiracy, or the solicitation of another to commit a ‘serious crime.’ ”

Subsections (A), (B), and (C) offer three different definitions of a serious crime; subsection (D) provides that an attempt, a conspiracy, or the solicitation of another to commit a “serious crime” is also a “serious crime.” One thus must refer to subsections (A), (B), or (C) to determine whether the crime a person attempted to commit, conspired to commit, or solicited another to commit constitutes a “serious crime.”

Jordan was convicted of conspiring with Sheriff Jimmy Woodward to “receiv[e], retain[ ], and conveH [ ] [National Crime Information Center (‘NCIC’) ] records to their own use.” This conviction under 18 U.S.C. § 371 calls into play Rule 8(c)(2)(D). It is a “serious crime” under subsection (D) of Rule 8(c)(2) if the crime the parties conspired to commit — conversion of property — constitutes a “serious crime” under subsection (A), (B), or (C) of Rule 8(c)(2).

It is undisputed that subsections (A) and (B) are not in play; thus, we must determine if “receiving, retaining, and converting NCIC records” is covered by subsection (C) of Rule 8(c)(2). The law regarding whether a crime is a “serious crime” under Rule 8(c)(2)(C) is well established. As the main opinion states:

“This is not the first time this Court has been called upon to review the issue whether ‘a crime less than a felony and not involving moral turpitude [may] be considered a “serious crime” ’ as that term is defined in Rule 8. [Alabama State Bar v.] Tipler, 904 So.2d [1237,] 1239 [ (Ala.2004) ]. See also Alabama State Bar v. Quinn, 926 So.2d 1018 (Ala.2005). In Tipler, in which we were also applying Rule 22(a)(2) and Rule 8(c)(2), we stated ‘[t]he dispositive issue’ in that case as ‘whether Tipler’s conviction ... [was] a “serious crime” within the meaning of Rule 8(c)(2)(C).’ 904 So.2d at 1240. In Tipler, we stated that, in making its determination whether the crime falls within the definition of a ‘serious crime’ found in Rule 8(c)(2)(C), Ala. R. Disc. P., the Board ‘is required to consider only the necessary elements of the crime.’ 904 So.2d at 1241. We further explained in Tipler that a review of the plain language of the charging statute will reveal the necessary elements: ‘Rule 8(c)(2)(C) defines a crime as a “serious crime” if the necessary elements of the statutory definition of the crime involve [“misappropriation, or theft”].’ Id. at 1241.”

92 So.3d at 728-29. Thus, the applicable analysis requires this Court to consider whether there is a conviction for a conspiracy and, if so, whether the conspiracy is to commit an offense that falls under the definition of a “serious crime” found in Rule 8(c)(2)(C).

The main opinion recognizes that, in determining whether an offense, standing alone, is a “serious crime” for purposes of Rule 8(c)(2)(C), the analysis in Alabama State Bar v. Tipler, 904 So.2d 1237 (Ala.2004), controls. However, the main opinion disregards Tipler when analyzing whether an offense that is the object of a conspiracy constitutes a “serious crime.” The rationale provided in the main opinion for this approach is that Tipler is applicable only for the purpose of determining whether an offense constitutes a “serious crime” under Rule 8(c)(2)(C) and that this case is different because it involves an analysis under Rule 8(e)(2)(D). I see no distinction: an analysis under Rule 8(c)(2)(C) is part of, and is required by, the analysis under Rule 8(c)(2)(D). In this case, the analysis under Rule 8(c)(2)(C) of Jordan’s conviction for violating 18 U.S.C. § 371, as stated in Tipler, is compelled under the basic rule of stare decisis.

The main opinion, however, goes further and sets forth a new analysis applicable to offenses falling within Rule 8(c)(2)(D):

“When considering whether a conviction for conspiracy to commit a ‘serious crime’ is a ‘serious crime’ as defined in Rule 8(c)(2)(D), the analysis must include, in addition to an examination of the elements of the offense, consideration of the facts supporting and the circumstances surrounding the conspiracy conviction.”

92 So.3d at 731. Under this approach, this Court must, for purposes of an analysis under Rule 8(c)(2)(D), continue to examine the elements of the underlying offense, as Rule 8(c)(2)(C) and Tipler require, but also “consider[ ] ... the facts supporting and the circumstances surrounding the conspiracy conviction.” 92 So.3d at 731. Such a consideration is contrary to the prohibition in Tipler that “the [Board] is not free to examine the degree of ‘seriousness’ of the crime. Rather, it is required to consider only the necessary elements of the crime when determining whether the crime falls within the definition of a ‘serious crime’ found in Rule 8(c)(2)(C).” Tipler, 904 So.2d at 1241.

The rationale expressed in the .main opinion for this additional component to the analysis finds no support in precedent or in the text of the rule and appears to be based on the belief that there is something sinister or unusual about the crime of conspiracy. Specifically, the main opinion, quoting a concurring opinion in a 1949 United States Supreme Court case, states that the conspiracy doctrine can “incriminate persons on the fringe of offending” and that there exists a “looseness and pliability” and “inherent dangers” in the prosecution of conspiracy offenses that “should be in the background of judicial thought,” 92 So.3d at 732; however, it does not identify any such concerns in the present case. Further, the main opinion suggests that there is a “habit to indict for conspiracy in lieu of prosecuting for the substantive offense itself,” 92 So.3d at 732, but no such thing occurred in this case: Jordan was convicted of receiving the records he was convicted of conspiring to receive, retain, and convert. Thus, none of the perceived problems the main opinion identifies actually exists in this case or necessitates the creation of a new approach to analyzing Rule 8(c)(2)(D).

Moreover, Jordan does not argue to this Court that Rule 8(c)(2)(D) should be modified or that the rationale expressed in the main opinion should be adopted. Although in some situations this Court will affirm a judgment on grounds not raised by the parties, “[tjhere is a rather obvious fundamental difference in upholding the trial court’s judgment and reversing it.” Smith v. Equifax Servs., Inc., 537 So.2d 463, 465 (Ala.1988). This Court does not reverse a judgment based on an argument that has not been made on appeal. Yellow Dog Dev., LLC v. Bibb Cnty., 871 So.2d 39, 41 (Ala.2003) (“[Tjhis Court will not ‘reverse a trial court’s judgment ... based on arguments not made to this [Cjourt.’ ” (quoting Brown v. Wal-Mart Stores, Inc., 864 So.2d 1100, 1104 (Ala.Civ.App.2002))); Tucker v. Cullman-Jefferson Cntys. Gas Dist., 864 So.2d 317, 319 (Ala.2003) (“ ‘An appeals court will consider only those issues properly delineated as such, and no matter will be considered on appeal unless 'presented and argued in brief.’ ” (quoting Braxton v. Stewart, 539 So.2d 284, 286 (Ala.Civ.App.1988))).

I would follow the plain language of Rule 8(c)(2)(C) and (D), and I concur with this Court’s analysis set out in its original opinion in this case released on December 16, 2011:

“Section 371 states:
‘“If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
“ ‘If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.’
“[T]he Eleventh Circuit Court of Appeals stated in [United States v. Jordan, 582 F.3d 1239 (11th Cir.2009),] that count one of the indictment charged both Woodward and Jordan with conspiring to violate 18 U.S.C. § 641 ‘by receiving, retaining, and converting NCIC records to their own use,’ 582 F.3d at 1244 (emphasis added), and concluded that the evidence was sufficient to support Jordan’s conviction for conspiracy under § 371. Similarly, the district court’s judgment reflected that Jordan’s conviction under count one of the indictment was based, in pertinent part, on ‘Conspiracy to Convert to Own Use Records and Things of Value of the United States....’
“Rule 8(c)(2)(D) defines a ‘serious crime’ as including ‘[a]n attempt, a conspiracy, or the solicitation of another to commit a “serious crime.’” Because Jordan was found guilty of, among other things, conspiring to convert the NCIC records, and because a conversion of those records would represent a misappropriation of the same and therefore constitute a ‘serious crime’ under Rule 8(c)(2)(C), the conclusion is inescapable that, under count one, Jordan was convicted of conspiring to commit a serious crime, which conspiracy in and of itself would constitute a serious crime under Rule 8(c)(2)(D). It necessarily follows then that Jordan’s conviction for violating § 371 constitutes a conviction for a serious crime, because that conviction is based on Jordan’s alleged conspiracy with Woodward.

I would thus affirm the Board’s decision that the conviction for conspiracy was a “serious crime” under Rule 8. Therefore, as to that portion of the main opinion, I dissent.

MAIN, J., concurs.

MURDOCK, Justice

(statement of recusal).

I testified as a character witness on behalf of Albert Jordan in the federal proceeding out of which the present case arises. I therefore recuse myself.

      . See Rule 12(f)(1), Ala. R. Disc. P. ("The parties have a right to appeal an adverse decision of the Disciplinary Board ... to the Supreme Court of Alabama ....").

      . Jordan appealed both the conviction for violating 18 U.S.C. § 641 and the conviction for violating 18 U.S.C. § 371. The United States Court of Appeals for the Eleventh Circuit affirmed both convictions. See discussion infra.

      . The federal indictment charged Jordan with felony offenses because the value of the property converted was alleged to be in excess of $1,000. At trial, the prosecution presented evidence indicating that the property was valued in excess of $1,000. The jury, however, did not make a finding as to the value of the property, and the prosecution conceded that the convictions were for misdemeanor offenses.

      . In United States v. Jordan, 316 F.3d 1215 (11th Cir.2003), in which the Eleventh Circuit Court of Appeals reinstated the indictment against Woodward and Jordan, which had been dismissed by the district court, the specific charges contained in the indictment were explained as follows:
      "Woodward and Jordan were each charged in three counts of the indictment. Count One alleged that both Woodward and Jordan conspired with each other to knowingly convert to their own use records and things of value of the United States of a value in excess of $1,000; to convey, without authority, records and things of value of the United States of a value in excess of $1,000; to receive and retain, with the intent to convert to their own use, records and tilings of value of the United States, of a value in excess of $1,000, knowing them to be converted; to knowingly engage in misleading conduct towards others with the intent to influence the testimony of persons in future official proceedings; and to defraud the United States, that is, use deceit, craft, trickery, overreaching and dishonest means to interfere with and impair lawful government functions, that is, the government’s control of the NCIC records and the information contained therein, all in violation of 18 U.S.C. § 371.
      "Count Two charged that Woodward knowingly and without authority conveyed to Jordan a thing of value of the United States (the NCIC records) knowing that he had no authority to do so, in violation of 18 U.S.C. §§ 2 & 641.
      "Count Three charged that Jordan knowingly received and retained a thing of value of the United States (the NCIC records), knowing them to have been wrongfully converted, with the intent to convert them to his own use, in violation of 18 U.S.C. §§ 2 & 641.”
      316 F.3d at 1224 n. 7.

      . We note the vagueness of the Eleventh Circuit’s identification of the pertinent portions of the applicable statute in that that Court does not state, with particularity, that only a single one of the paragraphs identified as pertinent to the appeal applies to Jordan. This may be explained by the fact that the Court was often discussing the charges against Jordan and Woodward collectively. Similarly, as reflected by Jordan’s brief to this Court, in which he purports to appeal from a self-styled "conversion” conviction, and by the Bar’s own apparent understanding of Jordan’s conviction, there appears to be some confusion as to whether Jordan was convicted of generally violating § 64 Í or of specifically violating only paragraph two of that section. However, upon careful review of the limited materials before us, we conclude that, from all appearances, Jordan was, in fact, charged only with violating paragraph two, i.e., with receiving or retaining the converted materials.

      . The Bar argues in its brief that Jordan "was found guilty of receiving a thing of value and converting it to his own use.” (Bar’s brief, at p. 16.) A defendant's actual conversion of property to his own use is not a necessary element of the offense in paragraph two in § 641 — the portion of the statute on which Jordan's count-three conviction was based— and nowhere else in the record is there a formal finding with respect to count three that Jordan was guilty of "converting” the NCIC records to his own use.
      We do not, however, hold that Jordan's conduct would not sustain a finding of a conversion. In fact, we note that, in rejecting Jordan’s challenge to the sufficiency of the evidence sustaining his conviction, the Eleventh Circuit specifically found that the evidence established that "Jordan subsequently used some of the information the printouts disclosed to prosecute Woodward’s election contest.” Jordan, 582 F.3d at 1247.

      . We note, however, that had Jordan’s count-three conviction been based, instead, on paragraph one of § 641, an alternative necessary element of the crime would have involved conversion, which we would have no trouble equating to "misappropriation.” Similarly, had Jordan’s count-three conviction been based on one or more of the other three forms of wrongful conduct addressed by paragraph one — ’’embezzle[ment], stealfing], or pur-loinfment]” — then a "serious crime” would have been established under Rule 8(c)(2)(C) not only as to "misappropriation” but also as to "theft.”

      . Section 371 states:
      "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
      “If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemean- or.”

      . See Alabama State Bar v. Hallett, 26 So.3d 1127, 1140 (Ala.2009), and Kyser v. Harrison, 908 So.2d 914, 918 (Ala.2005).

      . The main opinion does not appear to hold that the conspiracy conviction cannot constitute a "serious crime” under the rule.

        .Tipler is not challenged on appeal, and the doctrine of stare decisis informs this Court’s decision to follow it. Stare decisis " ‘is the only thing that gives form, and consistency, and stability to the body of the law. Its structural foundations, at least, ought not to be changed except for the weightiest reasons.’ ” Exxon Corp. v. Department of Conservation & Natural Res., 859 So.2d 1096, 1102 (Ala.2002) (quoting Bolden v. Sloss-Sheffield Steel & Iron Co., 215 Ala. 334, 340, 110 So. 574, 580 (1925) (Somerville, J., dissenting)). In this case, Tipler is controlling precedent, and we have not been asked to abandon it. "Stare decisis commands, at a minimum, a degree of respect from this Court that makes it disinclined to overrule controlling precedent when it is not invited to do so.” Moore v. Prudential Residential Servs. Ltd. P'ship, 849 So.2d 914, 926 (Ala.2002).

      . The main opinion does not speak to the issue whether the new analysis would be applicable when reviewing a conviction for attempting to or soliciting another to commit a serious offense.

      . Rule 8(c)(2) does not call for a consideration of mitigating circumstances in determining whether an offense is a "serious crime.” Instead, it calls for a legal determination based on clearly defined parameters of subsections (A), (B), (C), and (D) of that rule. Mitigating circumstances are more appropriately considered in determining punishment, which determination is separately appealable and has not yet occurred. Any mitigating circumstances surrounding the conspiracy conviction and tending to reduce Jordan’s culpability should be considered at that time; otherwise, the Court risks conflating the two separate considerations.

      “8As with Jordan’s § 641 conviction under count three, the abbreviated recitation of the applicable portion of the first paragraph of § 371, which specifically eliminates the ‘embezzles, steals, [or] purloins’ language, reflects the apparent determination by the Eleventh Circuit (having before it both the indictment and the record of that appeal, neither of which are in the appellate record before this Court) that the conspiracy count, being dependent on the § 641 offense that Woodward and Jordan were alleged to have conspired to commit, included that portion of § 641 criminalizing a defendant’s knowing conversion.

      “ 9 The definition of ‘misappropriation’ that the Bar relied on at the hearing, apparently from an edition of Black’s Law Dictionary predating the 6th edition, provides as follows:
      “‘Misappropriation. The act of misappropriating or turning to a wrong purpose; wrong appropriation; a term which does not necessarily mean peculation, although it may mean that. Term may also embrace the taking and use of another’s property for sole purpose of capitalizing unfairly on good will and reputation of property owner ....’”


source: Caselaw Access Project

author: MURDOCK, Justice.

license: Public Domain

text:
    Marquita DAVIS, in her official capacity as State Director of Finance, and Thomas L. White, Jr., in his official capacity as State Comptroller v. ALABAMA EDUCATION ASSOCIATION et al.
    1091745.
    Supreme Court of Alabama.
    March 23, 2012.

      Albert L. Jordan and Oscar M. Price III, deputy attys. gen., of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham; Richard H. Cater and Mose Stuart IV, State Department of Finance, Montgomery; and Algert S. Agricola, Jr., deputy atty. gen., of Ryals, Plummer, Donaldson, Agricola & Smith, P.C., Montgomery, for appellants.
    Joe Espy III and J. Flynn Mozingo of Melton, Espy & Williams, PC, Montgomery; and J. Mark White and Andrew C. Allen of White, Arnold & Dowd, Birmingham, for appellees Alabama State Employees Association and Alabama State Employees Association Political Action Committee.
    J. Cecil Gardner of The Gardner Firm, P.C., Mobile; Robert D. Segall of Copeland, Franco, Screws & Gill, PA, Montgomery; and Sam Heldman of The Gardner Firm, P.C., Washington, D.C., for appellees Alabama Education Association and Alabama Voice of Teachers for Education (A-Vote).
   MURDOCK, Justice.

The State Director of Finance, Marquita Davis (“the finance director”), and the State Comptroller, Thomas L. White, Jr. (“the comptroller”), appeal from a preliminary injunction entered by the Montgomery Circuit Court in response to a declaratory-judgment action brought by the Alabama Education Association (“the AEA”); Alabama Voice of Teachers for Education, a political-action committee affiliated with the AEA (“A-VOTE”); the Alabama State Employees Association (“the ASEA”); and the State Employees Association Political Action Committee, a political-action committee affiliated with the ASEA (“SEA-PAC”). We vacate the injunction and remand the case for the circuit court to dismiss the action.

I. Statement of Facts

Employees of the State of Alabama are paid through the office of the comptroller. Subject to certain conditions, § 36-1-4.8, Ala.Code 1975, provides that the comptroller may make deductions from the salary of a State employee upon the employee’s request. Specifically, § 36-l-4.3(a), Ala. Code 1975, provides:

“The state Comptroller shall adopt statewide policies which provide for deductions from the salaries of state employees or groups of state employees whenever a request is presented to the state Comptroller by a group of participating state employees equal in number to at least 200 provided, however, that deductions being made as of April 23, 1985, shall continue to be made. The deductions shall be made at least monthly and shall be remitted to the appropriate company, association, or organization as specified by the employees. The deductions may be made for membership dues, and voluntary contributions, and insurance premiums. Any deduction provided under the provisions of this section may be terminated upon two months’ notice in writing by a state employee to the appropriate company, association, or organization and to the appropriate payroll clerk or other appropriate officials as specified by the state Comptroller.”

Section 36-1^1.4, Ala.Code 1975, prescribes other procedures relating to the salary deductions authorized in § 36-1-4.3:

“The policies adopted by the state Comptroller for deductions from the salaries of state employees or groups of state employees for employee organizations shall provide that the deductions for membership dues and voluntary contributions shall be made based on membership lists and forms provided by the employees’ organization. Such lists are to be corrected and revised annually according to procedures to be established by the state Comptroller. Membership dues and voluntary contributions currently authorized shall continue on an annual basis for the current yearly period and for each succeeding yearly period unless the employee revokes the deduction in writing within 10 days of the next succeeding yearly period. Voluntary contributions may be revoked by giving a 30-day notice in- writing. New authorizations shall be permitted on a monthly basis according to procedures to be established by the state Comptroller. Upon leaving state service whether by death, retirement, termination, resignation, leave of absence or other means, payroll deduction of dues and authorized voluntary deductions shall cease. When an employee returns to state service from an approved leave of absence or other temporary leave, payroll deductions and voluntary contributions shall resume unless the employee revokes the deductions in writing. When amounts have been correctly deducted and remitted by the state Comptroller, the state Comptroller shall bear no further responsibility or liability for subsequent transactions.”

On July 1, 2010, the comptroller implemented a new policy regarding salary deductions. Under this new policy, the comptroller stopped executing salary deductions designated for contributions to SEA-PAC; the comptroller continued making deductions designated for the payment of dues to the ASEA. Likewise, the comptroller stopped executing salary deductions to a political-action committee affiliated with the Alabama State Troopers Association. Portions of an employee’s salary no longer deducted as a result of this policy change were included in the employee’s paychecks.

The comptroller’s change in the manner of executing salary deductions caused the AEA to inquire of the comptroller whether a similar policy change in deductions would be made as to the salaries of State employees who elected to have contributions deducted for the benefit of the AEA. In conjunction -with this inquiry, the comptroller was made aware that a portion of the deductions then being made for the benefit of the AEA were in turn contributed by the AEA to A-VOTE. Because the comptroller could not ascertain what portion of the deductions-designated for the AEA were passed on to A-VOTE,. the comptroller ceased executing all salary deductions designated for the AEA on September 1, 2010.

The comptroller based the aforesaid changes in the manner of executing salary deductions on his interpretation of the provisions in §§ 36-12-61 and 17-17-5, Ala. Code 1975. Section 36-12-61, Ala.Code 1975, provides:

“It shall be unlawful for any officer or employee of the State of Alabama to use or to permit to be used any state-owned property of any character or description, including stationery, stamps, office equipment, office supplies, automobiles or any other property used by him, in his custody or under his control for the promotion or advancement of the interest of any candidate for the nomination or election to any public office of the State of Alabama.”

As then codified, § 17-17-5, Ala.Code 1975, provided in part that “[n]o person in the employment of the State of Alabama ... shall use any state ... funds, property, or time, for any political activities.”

On September 10, 2010, the AEA and A-VOTE filed a complaint against the finance director and the comptroller in the Montgomery Circuit Court seeking a judgment declaring that deductions designated for the AEA that benefited A-VOTE were not prohibited by law and seeking a permanent injunction to force the comptroller to resume the previous practice of executing salary deductions designated for the AEA. Simultaneously, the AEA and A-VOTE filed a motion for a preliminary injunction or restraining order. On September 13, 2010, the ASEA and SEA-PAC filed a motion to intervene as plaintiffs in the action. The circuit court set a hearing on the motion for a preliminary injunction for the following day.

On September 14, 2010, before the hearing, the finance director and the comptroller filed a motion to dismiss the action for lack of subject-matter jurisdiction. At the outset of the hearing, counsel for the finance director and the comptroller explained that the AEA had informed the comptroller what portion of requested salary deductions reflected amounts to be forwarded to A-VOTE as contributions. Counsel for the finance director and the comptroller stated that, based on that newly received information, the comptroller would resume (and he subsequently did resume) as of October 1, 2010, salary deductions for the AEA in an amount that excluded the portion of those deductions that otherwise would be passed on to A-VOTE.

During the September 14 hearing, counsel for the plaintiffs argued at length concerning the meaning of the above-described statutes. The finance director and the comptroller called a witness to testify on their behalf. The plaintiffs submitted two affidavits from the executive director of the AEA, Paul Hubbert. Among other things, Hubbert testified that, after § 36-l-^4.3 was enacted in 1985, the comptroller received authorization from State employees for salary deductions for dues and contributions to A-VOTE and remitted the amounts collected pursuant to those authorizations to the AEA consistently from that time until the comptroller stopped executing the deductions in September 2010. Following the hearing, the circuit court denied the finance director and the comptroller’s motion to dismiss the action; it granted the motion to intervene filed by the ASEA and SEA-PAC.

On September 15, 2010, the ASEA and SEA-PAC filed their complaint in intervention in which they, like the AEA and A-VOTE, requested a judgment declaring the deductions for SEA-PAC legal and injunctive relief from the comptroller’s change in the manner of executing State employees’ salary deductions for SEA-PAC. On the same date, the circuit court entered a preliminary injunction requiring that the finance director and the comptroller

“a) shall in all future pay periods, honor all employee requests for payroll deductions pertaining to, or involving, AEA or A-VOTE, and ASEA or SEA-PAC, just as if Defendants’ recent change in that regard had never been made; and
“b) refrain from taking any action of any sort that would impair, or interfere with the honoring of, payroll deduction pursuant to employee requests, involving AEA, A-VOTE, ASEA, or SEA-PAC.”

The circuit court ruled that, without the preliminary injunction, the plaintiffs would suffer irreparable harm through the actions of the finance director and the comptroller because “the Plaintiffs will not be receiving the funds that their members have sought to have deducted and forwarded to the Plaintiffs. This will, furthermore, irreparably diminish Plaintiff A-VOTE’s, and Intervening Plaintiff SEA-PAC’s, ability to pursue their lawful goals in the near future.” The circuit court cited the doctrine of sovereign immunity, which it stated would prohibit monetary recovery by the plaintiffs, and the fact that it was then an election year as further evidence of the irreparable nature of the harm.

The circuit court concluded that the plaintiffs had demonstrated a likelihood of success on the merits through

“the strength of Plaintiffs’ arguments on the proper interpretation of Ala.Code [1975,] §§ 36-1-4.3, 36-1-4.4, and 36-12-61. There is substantial history at the administrative level of interpreting the phrase ‘voluntary contributions,’ in §§ 36-1-4.3 and -4.4, to include contributions to political action committees affiliated with employee organizations. This has been the Comptroller’s own interpretation for many years. This longstanding interpretation is persuasive evidence of the meaning of the statutes. Furthermore, the Court recognizes the strength of the argument that § 36-12-61 would not prohibit the payroll deduction of [political-action-committee] contributions even if that statute were standing alone. The Court notes the purpose of that Article of the Alabama Code as set forth in Ala.Code [1975,] § 36-12-60, and recognizes the strength of the argument that the longstanding administrative practice of payroll deduction was and will be consistent with that legislative purpose. The Court further recognizes the strength of the argument that Ala.Code [1975,] §§ 36-1-4.3 and - 4.4 (along with a similar statute at the local level), which have long been administratively interpreted as covering payroll deductions for voluntary PAC contributions, would govern if there were actually a conflict between those statutes and § 36-12-61.”

The following day the finance director and the comptroller filed a notice of appeal of the circuit court’s preliminary injunction. The finance director and the comptroller also filed in the circuit court a motion to stay the preliminary injunction pending resolution of the appeal. In support of the motion, the finance director and the comptroller filed an affidavit from the comptroller describing the attending risks of revising payroll data for employee contributions at the end of the fiscal year because it would require a substantial amount of other data adjustments. On September 17, 2010, the circuit court denied the motion to stay.

The finance director and the comptroller renewed in this Court their motion for a stay of the preliminary injunction pending the resolution of the appeal. They also requested immediate relief from the preliminary injunction to prevent the risk of interference with the completion of fiscal-year-end tasks. The finance director and the comptroller also moved for a stay of all proceedings in the circuit court and requested expedited review of the appeal. The following day, the plaintiffs filed responses to the finance director and the comptroller’s motions. On September 24, 2010, through a supplemental filing, the finance director and the comptroller informed this Court that the October 1, 2010, payroll for applicable State employees would include salary deductions for A-VOTE and SEA-PAC in compliance with the preliminary injunction but that such compliance did not constitute an abandonment of the appeal.

On October 15, 2010, this Court granted in part and denied in part the finance director and the comptroller’s motion to stay the preliminary injunction. This Court stayed that portion of the circuit court’s order that “requir[ed] the Comptroller to deduct contributions to a political action committee pursuant to an employee’s request for such payment.” This Court denied a stay of that portion of the circuit court’s order that “required] the Comptroller to deduct dues of the AEA and the ASEA pursuant to an employee’s request.”

Subsequently, in a special session, the legislature enacted, and the governor signed into law on December 20, 2010, Act No. 2010-761, Ala. Acts 2010 (“the Act”). The Act amended § 17-17-5, Ala.Code 1975, to explicitly state as follows:

“(a) No person in the employment of the State of Alabama ... shall use any state, county, city, local school board, or other governmental agency funds, property, or time, for any political activities.
“(b) No person in the employment of the State of Alabama ... may arrange by salary deduction or otherwise for any payments to a political action committee or arrange by salary deduction or otherwise 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....
“Any organization that requests the State of Alabama, a county, a city, a local school board, or any other governmental agency to arrange by salary deduction or otherwise for the collection of membership dues of persons employed by the State of Alabama, a county, a city, a local school board, or any other governmental agency shall certify to the appropriate governmental entity that none of the membership dues will be used for political activity. Thereafter, at the conclusion of each calendar year, each organization that has arranged for the collection of its membership dues of persons employed by the State of Alabama, a county, a city, a local school board, or any other governmental agency shall provide the appropriate governmental entity a detailed breakdown of the expenditure of the membership dues of persons employed by the State of Alabama, a county, a city, a local school board, or any other governmental agency collected by the governmental entity. ...”

The Act became effective on March 20, 2011. Act No. 2010-761, § 4.

Following the legislature’s amendment of § 17-17-5, the AEA and A-VOTE filed with this Court a motion to vacate the preliminary injunction that had been entered by the circuit court and to remand this case to the circuit court to allow the AEA and A-VOTE an opportunity to file with that court a motion to dismiss the action without prejudice. In their motion, the AEA and A-VOTE argued that “the landscape of the dispute between the parties has changed substantially” with the passage of the Act and that there were “potential issues of mootness, as well as many other potential issues that could arise” from the passage of the Act. The AEA and A-VOTE stated that, as a result of the passage of the Act, they “no longer wish[ed] to pursue this civil action.” They argued that this Court’s vacating the circuit court’s preliminary injunction and remanding the action so that the plaintiffs could file a motion to dismiss the action without prejudice would “keep the Court and the parties from having to address potentially complex and disputed arguments about [the Act] at this time.” On December 27, 2010, the ASEA and SEA-PAC filed with this Court a joinder in the December 28, 2010, motion of the AEA and A-VOTE. On January 10, 2011, the finance director and the comptroller filed a written opposition to the plaintiffs’ motion in which, among other things, they rejected the suggestion that the order of the circuit court should be vacated and the case remanded based on the “potential issues of mootness” argument made by the plaintiffs.

On March 8, 2011, the finance director and the comptroller notified this Court that on February 25, 2011, the plaintiffs had filed in the United States District Court for the Northern District of Alabama an action against the governor, the finance director, the comptroller, and other defendants (“the federal-court defendants”) challenging the constitutionality of the Act under the First and Fourteenth Amendments to the United States Constitution. Specifically, the complaint alleged that the Act’s ban on salary deductions in support of political activities is “overbroad” and vague, that enforcement of the Act would result in “viewpoint” discrimination, and that the Act violates the Equal Protection Clause of the Fourteenth Amendment. Subsequent filings in this Court by the finance director and the comptroller notified this Court that the federal district court on March 18, 2011, entered a preliminary injunction against the federal-court defendants that “enjoined and restrained [them] from implementing or enforcing [the Act].” The federal district court’s injunctive order further stated that “[a]ll defendants named above must honor employee requests for payroll deductions to the Alabama Education Association (AEA’), and must remit the deducted amounts (including amounts representing contributions to A-VOTE’) to AEA.” The federal-court defendants filed a notice of appeal of the preliminary injunction, as well as a motion to stay the injunction, to the United States Court of Appeals for the Eleventh Circuit.

On April 5, 2011, the Eleventh Circuit Court of Appeals entered an order denying the motion to stay the federal district court’s preliminary injunction insofar as it prohibited the implementation of the Act. The Eleventh Circuit granted a stay, however, of the portion of the preliminary injunction that required the federal-court defendants to honor employee requests for salary deductions designated for the AEA that represented contributions to A-VOTE. The Eleventh Circuit noted that, before the enactment of the Act, the comptroller, based on preexisting Alabama law, already had ceased executing salary deductions from applicable State employees’ paychecks that represented contributions to political-action committees. In particular, the Eleventh Circuit noted:

“If, as the district court has preliminarily concluded, the new Act is unconstitutional and its provisions are nonsev-erable, the provisions of the Alabama Code on which the Comptroller’s June 28, 2010 policy was based are unaffected by the new Act. There is nothing in the district court’s memorandum opinion, or in the law of which we are aware, to justify a federal court injunction preventing the [federal-court] defendants from refusing to deduct for, or remit to, any organization amounts representing contributions to A-VOTE or any other [political-action committee], based on their interpretation of pre-Act 2010-761 state law. To the contrary, Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 853, 129 S.Ct. 1093 (2009), clearly permits the defendants to refuse to collect and remit PAC contributions.”

Thus, the Eleventh Circuit upheld the federal district court’s preliminary injunction of the implementation of the Act, except that it stayed the injunction

“insofar as the preliminary injunction: 1) requires any defendant to honor employee requests for payroll deductions for contributions to A-VOTE or to any other [political-action committee]; 2) requires any defendant to remit or pay over any PAC payroll deductions to any entity or person other than the employees from whose pay they were deducted; and 3) prevents any defendant from remitting or refunding any PAC payroll deduction to the employee from whose pay it has been deducted.”

On December 27, 2011, the Eleventh Circuit Court of Appeals filed with this Court certified questions pertaining to the Act in relation to the constitutional challenge filed by the AEA and A-VOTE, which query has been docketed as case no. 1110413. Those questions concern the interpretation of the Act and specifically ask:

“1. Is the ‘or otherwise’ language in [the Act] limited to the use of state mechanisms to support political organizations, regardless of the source?
“2. Does the term ‘political activity’ refer only to electioneering activities?”

On January 25, 2012, the finance director and the comptroller filed a motion to consolidate this case with case no. 1110418 on the ground that “the facial validity of [the Act is] at stake in both cases, there is likely substantial overlap between the issues raised by AEA’s submission of [the Act] to this Court in No. 1091745 and the questions due to be considered in No. 1110413.”

On February 1, 2012, the AEA and A-VOTE filed a response in opposition to the motion to consolidate in which they asserted that the constitutional claims made in the federal action concern only the new Act. Thus, argue the AEA and A-VOTE, those claims and the federal action “are entirely distinct from the question at issue in this appeal, which concerns the proper interpretation of § 17-17-5 as it existed before [the Act] became law.” (Emphasis added.)

Also on January 25, 2012, the finance director and the comptroller filed what they styled a “Renewed Motion for Stay” of the preliminary injunction in which they requested that, based upon the Act, this Court expand the stay it had issued on October 15, 2010. The motion characterized the previous stay granted by this Court as one permitting the comptroller to refuse salary deductions that were directly contributed to political-action committees. The finance director and the comptroller assert that the comptroller also may refuse salary deductions designated for dues to organizations that contribute a portion of the deducted moneys to political-action committees associated with those organizations. On February 1, 2012, the AEA and A-VOTE filed a response in opposition to the renewed motion for a stay.

II. Standard of Review

As to questions of fact, the ore tenus rule is applicable in preliminary-injunction proceedings. See Water Works & Sewer Bd. of Birmingham v. Inland Lake Invs., LLC, 31 So.3d 686, 689-90 (Ala.2009). As this Court noted in Holiday Isle, LLC v. Adkins, 12 So.3d 1173, 1176 (Ala.2008), however,

“[t]o the extent that the trial court’s issuance of a preliminary injunction is grounded only in questions of law based on undisputed facts, our longstanding rule that we review an injunction solely to determine whether the trial court exceeded its discretion should not apply. We find the rule applied by the United States Supreme Court in similar situations to be persuasive: ‘We review the District Court’s legal rulings de novo and its ultimate decision to issue the preliminary injunction for abuse of discretion.’ Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 428, 126 S.Ct. 1211, 163 L.Ed.2d 1017(2006)....”

(Emphasis omitted.)

III. Analysis

As noted, we have before us a motion from the plaintiffs to vacate the circuit court’s preliminary injunction and to remand the case to provide the plaintiffs an opportunity to file a motion requesting the circuit court to dismiss the action without prejudice. When the plaintiffs filed this motion, their action was not moot. Although the legislature had enacted the Act and it had been signed by the governor, it was not immediately effective. Perhaps recognizing that their claims based on the meaning of Alabama’s previous statutory scheme were not moot at the time they filed their motion, the plaintiffs’ motion stated, in pertinent part:

“Before [the] Act, th[is] ease primarily involved the interpretation of statutes that had been enacted and codified years before the trial court’s ruling. Now, by virtue of this new legislative action, the scope and nature of the issues potentially implicated in a dispute about payroll deductions for these parties has changed. There are potential issues of mootness, as well as many other potential issues that could arise.... Because of this change in circumstance, AEA and A-VOTE no longer wish to pursue this civil action.”

(Emphasis added.)

Among other things, the finance director and the comptroller cite this Court’s decisions in Barber v. Cornerstone Community Outreach, Inc., 42 So.3d 65, 77-78 (Ala.2009), and Chapman v. Gooden, 974 So.2d 972, 989 (Ala.2007), and oppose the plaintiffs’ motion on the ground that allowing a party who prevailed in the trial court to render an appeal moot simply by expressing a desire to no longer pursue an action raises the specter of manipulation of the court process. In Cornerstone, this Court stated:

“We also consider whether the appeals of the preliminary injunction are or could be made moot if this Court were to remand the case in order to allow for a rescission by the trial court of the preliminary injunction. At bottom, what would then be at issue would not be an agreement by [the plaintiffs] to relinquish their right to engage in any particular conduct, but rather an acquiescence by [the plaintiffs] in having the trial court rescind an order favoring them. We are aware of no cases in which a willingness by a prevailing party in the trial court to have the case returned to the trial court for purposes of the rescission of the order favoring it moots the proceeding in the appellate court.
“We decline to hold that the apparent willingness of a prevailing litigant in the court below to have an appeal to this Court dismissed and the case remanded for the purpose of allowing the lower court to rescind the judgment in its favor deprives this Court of any discretion to decide the matter pending before us.”

Cornerstone, 42 So.3d at 72-74.

We do not find it necessary at this juncture to further consider the plaintiffs’ motion to dismiss or the application of our holding in Cornerstone to this case. As noted, the plaintiffs’ claims in this case are based on Alabama’s statutory scheme as it existed before the effective date of the Act and, in particular, seek judicial approval of their interpretation of that statutory scheme. The Act, however, became effective on March 20, 2011, and by its terms now clearly prohibits the comptroller from executing salary deductions that contribute directly or indirectly to political-action committees. No claims are made in the present lawsuit seeking the return of any moneys the comptroller has refused to deduct in the past, and the Act now plainly forecloses the prospective declaratory and injunctive relief specifically requested by the plaintiffs in this case. By definition, therefore, this action is moot.

Whether former § 17-17-5 prohibited salary deductions for contributions to political-action committees is an abstract question, because the former statute is no longer effective law. As this Court stated in Underwood v. Alabama State Board of Education, 39 So.3d 120, 129 (Ala.2009), “ ‘[a] case is moot when there is no real controversy and it seeks to determine an abstract question which does not rest on existing facts or rights’ ” (quoting State ex rel. Eagerton v. Corwin, 359 So.2d 767, 769 (Ala.1977) (emphasis omitted)). See also, e.g., King v. Campbell, 988 So.2d 969, 976 (Ala.2007) (“ ‘We have held that if an event happening after hearing and decree in circuit court, but before appeal is taken, or pending appeal, makes determination of the appeal unnecessary or renders it clearly impossible for the appellate court to grant effectual relief, the appeal will be dismissed.’ ” (quoting Morrison v. Mullins, 275 Ala. 258, 259, 154 So.2d 16, 18 (1963))).

The finance director and the comptroller also make certain arguments concerning the circuit court’s jurisdiction over this action and contend that we should address those various arguments before reaching the issue of mootness. This argument ignores the fact that whether an action is moot is also a matter of jurisdiction. See, e.g., Underwood, 39 So.3d at 127 (“ ‘ “A moot case lacks justici-ability.” Crawford [v. State, 153 S.W.3d 497, 501 (Tex.App.2004) ]. Thus, “[a]n action that originally was based upon a justi-ciable controversy cannot be maintained on appeal if the questions raised in it have become moot by subsequent acts or events.” Case [v. Alabama State Bar, 939 So.2d 881, 884 (Ala.2006) ].’” (quoting Chapman v. Gooden, 974 So.2d 972, 983-84 (Ala.2007)) (emphasis omitted)). After carefully considering the other arguments raised by the finance director and the comptroller, we conclude that to address those arguments at this juncture would involve the Court in answering questions unnecessary to the disposition of the appeal.

“ ‘The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.’ ”

King v. Campbell, 988 So.2d at 976 (quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895)).

We also find unpersuasive the finance director and the comptroller’s argument that we should request the relative positions of the parties as to the meaning of the Act before deciding the effect of the Act on this action. There is no need to determine the precise reach of the Act at this juncture. The action before us is one that challenges the practices adopted by the finance director and the comptroller based on their interpretation of Alabama statutory law as it existed before the Act became effective. It is enough for present purposes to know that the Act explicitly states a rule that encompasses those practices. Unavoidably, therefore, the action before us must be considered moot.

Similarly, the fact that the constitutionality of the Act has been challenged by the AEA and A-VOTE in federal court does not alter our holding today. The possibility that the Act will be declared unconstitutional at some time in the future is merely that — a possibility. The constitutionality of the Act is not a question that has been presented to us in the present case. To act on such a possibility would require speculation on our part, in conflict with the general principle that “acts of the legislature are presumed constitutional.” State ex rel. King v. Morton, 955 So.2d 1012, 1017 (Ala.2006).

Because this action is moot as a result of a change in the law, it follows that the basis for the circuit court’s preliminary injunction no longer exists.

‘“Where the grounds and reasons for which the injunction was granted no longer exist, by reason of changed conditions, it may be necessary to alter the decree to adapt it to such changed conditions, or to set it aside altogether, as where there is a change in the controlling facts on which the injunction rests, or where the applicable law, common or statutory, has in the meantime been changed, modified, or extended. Such change in the law does not deprive the complainant of any vested right in the injunction, because no such vested right exists.’ ”

Wilkinson v. State ex rel. Morgan, 396 So.2d 86, 89 (Ala.1981) (quoting 42 Am. Jur.2d Injunctions § 334 (1969)). Therefore, the injunction is due to be vacated.

IV. Conclusion

The claims presented by the plaintiffs in their action seeking declaratory and in-junctive relief are now moot. Therefore, we vacate the circuit court’s preliminary-injunction order and remand the case for the circuit court to dismiss the action.

ORDER VACATED AND CASE REMANDED WITH INSTRUCTIONS.

WOODALL, STUART, PARKER, and WISE, JJ., concur.

MALONE, C.J., recuses himself.

      . When this action was filed, Bill Newton was the acting State Director of Finance and was the named defendant. Davis was automatically substituted as a defendant when she became State Director of Finance. See Rule 25(d), Ala. R. Civ. P. We have restyled the appeal accordingly.

      . The office of the comptroller is within the Department of Finance.

      . As discussed infra, § 17-17-5 was amended effective March 20, 2011, by Act No. 2010-761, Ala. Acts 2010.

      . Section 4 of the Act provides that the Act becomes effective 90 days following its passage and approval by the governor.

      . The other named federal-court defendants are then State Superintendent of Education Joseph Morton, then Chancellor of Post-Secondary Education Freída Hill, Madison County District Attorney Robert Broussard, Lee County District Attorney Robert T. Treese III, the Huntsville City Board of Education, the City of Madison Board of Education, and the Madison County Board of Education.

      . In Ysursa, the United States Supreme Court concluded that "nothing in the First Amendment prevents a State from determining that its political subdivisions may not provide payroll deductions for political activities." 555 U.S. 353, 355, 129 S.Ct. 1093, 172 L.Ed.2d 770 (2009).

      . In its submission of certified questions, the Eleventh Circuit also further limited the federal district court's preliminary injunction by permitting the State to enforce the Act to the extent that it restricts "payroll deductions for organizations engaged in electioneering activities” because such a restriction "likely would be found constitutional under Ysursa [v. Poca-tello Educ. Ass’n, 555 U.S. 353 (2009)].”

      . Given our resolution of this appeal, we see no reason to grant the finance director and the comptroller's motion to consolidate this appeal with case no. 1110413. The Act was not the basis of the plaintiffs' action in this case, and its validity is not before us in this appeal. The certified questions submitted to this Court by the United States Court of Appeals for the Eleventh Circuit in case no. 1110413 have no bearing on the issues presented to us in this case. Therefore, by separate order issued in conjunction with this opinion, we are denying the finance director and the comptroller’s motion to consolidate the two appeals.

      . The finance director and the comptroller contend that the plaintiffs have suffered no cognizable injury, that deductions for the AEA or A-VOTE have been requested by fewer than the 200 employees specified in § 36 — 1— 4.3(a), and that the plaintiffs' claims are barred by Art. I, § 14, Ala. Const. 1901.

      . We note that
      "[tjhere is a well established exception to the mootness doctrine allowing courts to reach the ultimate issue even if it has become moot 'where “a broad public interest is involved.” ' Slawson v. Alabama Forestry Comm'n, 631 So.2d 953, 957 (Ala.1994) (quoting Payne v. J.T.N., 568 So.2d 830, 831 (Ala.Civ.App.1990))....
      " 1 "The criteria for applying the public interest exception to the mootness doctrine include the public nature of the question, the desirability of an authoritative determination for the purpose of guiding public officers, and the likelihood that the question will generally recur.” [1A C.J.S. Actions § 81 (2005)] (footnote omitted). However, this "exception is construed narrowly ... and a clear showing of each criterion is required to bring a case within its terms.” In re Adoption

        of Walgreen, 186 Ill.2d 362, 365, 238 Ill.Dec. 124, 710 N.E.2d 1226, 1227 (1999).’ ”

        Underwood, 39 So.3d at 130 (quoting Chapman v. Gooden, 974 So.2d 972, 989 (Ala.2007) (emphasis omitted)). Although the issue of what salary deductions are legally permissible may well be a question of public interest, an authoritative resolution of that question in relation to the previous statutory scheme governing such deductions would offer no guidance to public officials on how to act in the future. Also, with the enactment of the Act and the superseding of former § 17-17-5, we cannot conclude that that question is likely to recur. We see no basis, in other words, for expending judicial resources on an examination of the questions raised in the complaint based on the public-interest exception to the mootness doctrine.