Covin v. Alabama Bd. of Examiners in Counseling

• Decision Date: 13 March 1998
• Parties: Theron Michael COVIN v. ALABAMA BOARD OF EXAMINERS IN COUNSELING. 2961196.
• Court: Alabama Court of Civil Appeals

Page 1103

712 So.2d 1103

Theron Michael COVIN v. ALABAMA BOARD OF EXAMINERS IN COUNSELING.

2961196.

Court of Civil Appeals of Alabama.

March 13, 1998.

Jim L. Debardelaben of Debardelaben & Norwood, P.C., Montgomery, for appellant.

Bill Pryor, atty. gen., and Robert D. Tambling, asst. atty. gen., for appellee.

ROBERTSON, Presiding Judge.

Theron Michael Covin appeals from a judgment of the Montgomery County Circuit Court dismissing his complaint for lack of subject matter jurisdiction. We reverse and remand.

Covin is a counselor employed by the Center for Counseling and Human Development, a private, nonprofit organization. Since 1980, Covin has also been licensed by the Alabama Board of Examiners in Counseling ("the Board") as a professional counselor authorized to engage in the private practice of counseling.

In May 1995, the Board commenced an administrative disciplinary proceeding against Covin. In its complaint, the Board alleged that Covin had violated several ethical standards previously adopted by the Board, and directed Covin to appear before it to show cause why he should not have his counseling license revoked or suspended or be placed on probation. After a five-day hearing, the Board entered an order on January 24, 1996, adopting the findings of fact filed by its appointed hearing officer, suspending Covin's counseling license for one year, and conditioning reinstatement of his license upon his satisfactory completion of a period of supervision of his practice by a third party approved by the Board. Covin filed a notice of appeal with the Board on February 12, 1996.

On February 22, 1996, Covin filed a complaint in the Montgomery County Circuit Court, naming as defendants the Board; Windell Williamson, in his individual capacity and in his official capacity as chairperson of the Board; and Ken Norem, Allen Wilcoxon, and Rene Middleton, in their individual capacities and in their official capacities as members of the Board. Covin's complaint alleged (1) that the Board was without jurisdiction to discipline him; (2) that his hearing was not held within the time limitations set forth in § 34-8A-16(b), Ala.Code 1975, a portion of the chapter of the Alabama Code governing the Board; (3) that the Board failed to provide him with a more definite statement of the charges against him, in violation of § 41-22-12(b)(4), a portion of the Alabama Administrative Procedure Act ("AAPA"); (4) that his constitutional due process rights and his rights under the AAPA had been violated because the Board's hearing officer and its prosecuting attorney were both assistant attorneys general; (5) that the Board erred in failing to grant a motion to strike all of its witnesses; (6) that the Board allowed improper testimony to be offered; (7) that the Board was without authority to hire a hearing officer; (8) that the procedure by which the defendants conducted the hearing generally violated his substantive and procedural due process rights, and that the Board's decision was clearly erroneous, unreasonable, arbitrary, capricious, or an abuse or clearly unwarranted exercise of discretion; (9) that the Board's order was due to be stayed; and (10) that the actions of the defendants were taken under color of state law and that their actions deprived him of his federal constitutional rights (citing 42 U.S.C. § 1983). Covin requested that the Board's allegations and findings against him be retracted; he demanded compensatory and punitive damages from the defendants; and he sought a jury trial on all issues so triable.

The Board and the individual defendants filed a motion to dismiss or, in the alternative, for a summary judgment, contending, among other things, that the Board and its members were immune from suit and liability; that Covin's complaint did not constitute a proper petition for judicial review under the AAPA (see § 41-22-20, Ala.Code 1975); and that Covin did not raise his subject matter jurisdiction objections before the Board. The trial court granted the defendants' motion for summary judgment, concluding that Covin's "proper remedy was to file a petition for review pursuant to the [AAPA]"; that "he did not" do so; and that the court was therefore without jurisdiction to consider Covin's complaint. The trial court further stated that "[i]f it were to review the Board's decision, based on the facts presented, the Court would find that Covin is subject to the jurisdiction of the Board."

On appeal, Covin contends, among other things, that his complaint was sufficient to invoke the jurisdiction of the trial court to review the Board's disciplinary sanctions. The Board contends, as the trial court concluded, that Covin did not follow the procedures set forth in the AAPA for obtaining judicial review of an agency decision.

The AAPA provides, in pertinent part, that a party who has exhausted all administrative remedies and who is aggrieved by a final agency decision in a contested case is entitled to judicial review. Ala.Code 1975, § 41-22-20(a). Under the AAPA, this process is initiated by filing a notice of appeal with the pertinent agency within 30 days of the receipt of notice of its decision (or within 30 days after its decision on any application for rehearing) and by posting with the agency a bond for costs. § 41-22-20(b), (d). Covin filed a notice of appeal on February 12, 1996, within 30 days of the Board's final order, but he did not file a cost bond until April 2, 1996. However, the Board does not rely upon the delayed filing of a cost bond as a ground for affirmance, and this court's opinions make it clear that, under the AAPA, such a delay in filing a cost bond will not defeat the jurisdiction of the trial court. See State Dep't of Human Resources v. Funk, 651 So.2d 12, 14 (Ala.Civ.App.1994) ("nothing in [§ 41-22-20(d) ] suggests that posting security for costs within the statutory time limit is a jurisdictional requirement for perfecting an appeal"; discussing pertinent earlier authorities).

The next step outlined in the AAPA for perfecting a request for judicial review of an agency decision is the filing, within 30 days after the notice of appeal, of a petition for review in the circuit court of either (1) Montgomery County, (2) the county where the pertinent agency is headquartered, or (3) the county where a party resides. Ala.Code 1975, § 41-22-20(c). Under the AAPA, the petition for review must name the agency as respondent and must concisely state "(1) The nature of the agency action which is the subject of the petition; (2) The particular agency action appealed from; (3) The facts and law upon which jurisdiction and venue are based; (4) The grounds on which relief is sought; and (5) The relief sought." § 41-22-20(h). In addition, because an appeal from an agency decision must be heard in the circuit court, the Alabama Rules of Civil Procedure apply to such appeals, in all areas not governed by applicable statutes. Rule 81(a)(32), Ala.R.Civ.P.

Covin's complaint contains 10 counts (including one count seeking damages under 42 U.S.C. § 1983), names several members of the Board in their official and individual capacities as additional parties, and demands a jury trial on all issues so triable. The Board correctly notes that the AAPA envisions neither a jury trial nor a de novo review of an agency's decision, but mandates a limited review by the trial judge on the record developed...