City of Orange Beach v. Duggan

• Decision Date: 15 December 2000
• Citation: 788 So.2d 146
• Parties: CITY OF ORANGE BEACH et al. v. Richard DUGGAN.
• Court: Alabama Supreme Court

788 So.2d 146

CITY OF ORANGE BEACH et al. v. Richard DUGGAN.

1990682.

Supreme Court of Alabama.

December 15, 2000.

Lawrence M. Wettermark and Andrew J. Rutens of Galloway, Smith, Wettermark & Everest, Mobile, for appellants.

Oliver J. Latour, Jr., Foley, for appellee.

T. Randall Lyons and Stacy A. Linn of Nix, Holtsford, Gilliland, Lyons & Higgins, P.C., Montgomery, for amicus curiae Alabama Municipal Insurance Corporation.

SEE, Justice.

The defendants—the City of Orange Beach ("Orange Beach"); the Orange Beach Personnel Board (the "Board"); Orange Beach's director of personnel; and the chairman and four members of the Board—petitioned this Court, pursuant to Rule 5, Ala. R.App. P., for permission to appeal from an interlocutory order of the Baldwin Circuit Court. The interlocutory order denied the defendants' motion for a summary judgment on the plaintiff Richard Duggan's claim that he was deprived of procedural due process, in violation of the Constitution of Alabama of 1901. This case involves the termination of Duggan's employment as a police officer with Orange Beach. We permitted the appeal. We reverse and remand.

I.

For the limited purpose of this appeal, we consider as correct the factual statements in the trial court's order denying the defendants' motion for summary judgment.¹ On April 29, 1997, Duggan, while off duty, was driving in his automobile when he heard on his police radio that the police were looking for a DUI suspect. Shortly thereafter, Duggan was forced to swerve out of the path of an oncoming car that matched the description of the DUI suspect's car. Duggan began pursuit, and he, Sgt. Lyle Dodd, and another Orange Beach police officer ultimately stopped the suspect's car. During the arrest, animal control officer Sean Lacey and Sgt. Gina Long reported to the scene to assist the arresting officers. Officer Lacey said he saw Duggan take a $100 bill out of the suspect's purse. Officer Lacey notified Sgt. Long, who ordered Duggan to empty his pockets. Duggan refused. Both Sgt. Dodd and Officer Lacey said they saw Duggan then take money from his pocket and drop it into the suspect's car. Police Chief Robert Vinson was called to the scene; he ordered all the officers present to submit written statements. Chief Vinson then ordered Maj. Gerald Poe, the officer in charge of internal police investigations for Orange Beach, to investigate.

On May 9, 1997, at the conclusion of his investigation, Maj. Poe reported to Chief Vinson that his findings substantiated the allegations made against Duggan and he recommended that disciplinary action should be taken. That same day, Maj. Poe served Duggan with a notice of possible major disciplinary action and a copy of the written internal investigation notification. The internal investigation notification stated the charges against Duggan and stated the date set for a pretermination hearing.

On May 15, 1997, Duggan was afforded a pretermination hearing before Chief Vinson. At no time during this hearing did Duggan or his attorney object to Chief Vinson's conducting the hearing. Duggan was notified later that day of Chief Vinson's decision to terminate him. Duggan appealed to the Board on May 20, 1997. On June 10, 1997, the Board held a prehearing conference, at which scheduling issues and witness information were discussed. At the end of the conference, the director of personnel for Orange Beach provided Duggan a notebook containing copies of the written statements of Duggan, Sgt. Dodd, Officer Lacey, and Sgt. Long; a forensic report; a radio log; the internal investigation report; a "money trail"; and a property receipt and invoice. Copies of the notebook were also provided to Chief Vinson and to members of the Board. Duggan contends that he did not know that this notebook was being provided to the Board members and that supplying this information to the Board before the hearing violated his procedural-due-process rights.

On June 23, 1997, the Board held its hearing on Duggan's appeal. For the first time, Duggan contended that Chief Vinson was biased against him and objected to the Board's being provided the notebooks. He requested that the Board members recuse themselves and that a new Board be constituted. The Board denied the objection, and it upheld Duggan's termination.

Duggan sued in the Circuit Court of Baldwin County, seeking damages under 42 U.S.C. § 1983 for alleged violations of due process under the United States Constitution and seeking a common-law appeal and certiorari review of the termination order. The defendants removed the case to the United States District Court for the Southern District of Alabama and moved there for a summary judgment as to the federal-law procedural-due-process claims and further requested the federal court to conduct the certiorari review based upon the written transcript of the Board hearing. The federal court entered a summary judgment in favor of the defendants as to all of the § 1983 claims and remanded the case for the Circuit Court of Baldwin County to decide all state-law issues. The federal court relied on McKinney v. Pate, 20 F.3d 1550, 1564 (11th Cir.1994), wherein the United States Court of Appeals for the Eleventh Circuit held that in an employment-termination case, "the presence of a satisfactory state [postdeprivation] remedy" through the appellate process provides all the "procedural due process" that is required, and, thus, that having a biased decision-maker in a pretermination hearing does not violate the Due Process Clause of the Constitution of the United States.

On remand of the case to the circuit court, Duggan amended his complaint to add causes of action based on alleged violations of due process under the Alabama Constitution of 1901. The defendants moved for a summary judgment on Duggan's state-law claims. The circuit court denied the defendants' motion for summary judgment as to the state-law due-process claims, relying on Stallworth v. City of Evergreen, 680 So.2d 229 (Ala. 1996). In Stallworth, this Court rejected the reasoning in McKinney and held that where a pretermination hearing officer is biased against a terminated governmental employee, the employee is denied federal procedural due process. Id. at 235. In its order denying the defendants' motion for summary judgment, the trial court stated that it would "assume that [this Court] would apply the same [Stallworth] rationale to the Alabama Due Process Clause as was applied to the federal clause." The trial court certified its order for permissive appeal to this Court, under Rule 5, Ala. R.App. P.

In its statement of the summary-judgment issues, the trial court stated that Duggan alleges due-process violations "under the Constitution of the State of Alabama, Article I, Section 6."² We granted the defendants' petition for permission to appeal the interlocutory order; and we now reverse the circuit court's order denying the defendants' motion for a summary judgment.

II.

When reviewing a ruling on a motion for a summary judgment, this Court applies the same standard that the trial court used "in determining whether the evidence before the court made out a genuine issue of material fact." Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988). When a party moving for a summary judgment makes a prima facie showing that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). "Substantial evidence" is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In reviewing a ruling on a motion for a summary judgment, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Renfro v. Georgia Power Co., 604 So.2d 408, 411 (Ala.1992).

III.

In support of their motion for summary judgment, the defendants argue that this Court's holding in Stallworth, 680 So.2d at 235, is contrary to the federal caselaw interpretation of the federal Due Process Clause and should be overruled. They argue that this Court should not develop a separate body of decisional law holding that the procedural due-process protections of the Constitution of Alabama of 1901 are different from those afforded under the Fourteenth Amendment to the United States Constitution. Therefore, they argue, this Court should adopt the holding in McKinney, 20 F.3d 1550, and overrule our prior holding in Stallworth, 680 So.2d 229.

This case is distinguishable from Stallworth. In Stallworth, the plaintiff government employee alleged that his due-process rights guaranteed by the United States Constitution and the Alabama Constitution had been violated because a biased decision-maker had participated in his pretermination hearing. 680 So.2d at 232. At the pretermination hearing, the government employee objected to the pretermination officer. In this case, Duggan waited to object until he had appealed to the Board. Also, in Stallworth the pretermination hearing officer was called as a witness at the pretermination hearing against the government employee and at the subsequent appellate hearing. In this case, Duggan's only allegations of bias against Chief Vinson are that he helped prepare the charges against Duggan, ordered the investigation, and helped one of the officers draft a statement against Duggan. Chief Vinson made no allegations himself, and he was not a witness against Duggan. Most important, in Stallworth this Court declined to follow the holding of the Eleventh Circuit in McKinney, 20 F.3d at 1564—that a biased decision-maker's...